STAYING SANE AS A LITIGATOR 5: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…

No matter how hard you try, on occasions, things will go wrong in litigation.  Do you have a plan?  Here we examine the need to have a plan to cover default and other issues in litigation. We then look in detail at the practical steps that can be taken if anything goes wrong in litigation.

“Ladies and Gentleman this is your pilot speaking. Welcome to the Littrav airline run solely by  litigation specialists.  Flying is the safest form of transport and for that reason we don’t bother with emergency drills or safety instructions.  I have not had any training in what to do if anything goes wrong during a flight. The cabin staff do not know how to open the emergency exits or operate the slides or life jackets.  If the masks fall out from the area above you please do your best. We hope you have a comfortable flight”.

 

THINGS WILL GO WRONG IN LITIGATION

Litigators are in business because we live in a less than perfect world.  Something, somewhere, has gone wrong and then we get involved. Litigators are also extremely wise but only because we see everything with the benefit of hindsight.  The surprising thing is how few litigators have contingency plans for when things go wrong in litigation. I have said before – pilots get trained how to deal with problems and difficulties, including crash landings, lawyers don’t.  This is not comforting.

DOES THE FAILURE TO PLAN MATTER?

The failure to have a plan often leads to a problem being ignored, the lawyer involved panics, keeps the issue to themselves and this exacerbates matters (sometimes to a point of no return).  If there had been a clear plan for identifying and dealing with a problem, or default, at the outset then prompt action     can usually help considerably in putting matters right.

There are plenty of recent examples of this where time limits have been missed, and then the problem ignored, until the problem reached major proportions (sometimes ending with the lawyer being struck off).

THE PLAN

The need for contingency planning

As noted above, litigators, of all people, should know that things can go wrong. If they did not then there would be no need for litigators. Planning for things to go wrong is not a sign of weakness or defeatism.  It is pure realism.  All litigation departments have systems in place to ensure that things go right, however your contingency plan provides the essential safety net. Further effective contingency planning will feed back into the department and cut down on mistakes in the first place.

Knowing when things go wrong

Any contingency planning has to have a strategy for recognising when things have gone wrong.  In many cases this is obvious. The key point is often when a limitation period is missed, proceedings not served in time or an application made to strike the action, or part of the action or Defence, out.

Who should deal with the file?

When matters go wrong on a file it, normally, becomes the bane of the lawyer’s life.  It is often passed onto someone else. Hence the courts often see witness statements that say:

I now have conduct of this matter because I am the newest/youngest/ most gullible person in the department and everyone else realised that this file was a bag of rats.”

Of course the statement does not say that expressly. However most of our District Judges and Masters have knocked around for while and they can recognised the “hospital pass” file. It is not difficult to read the writing between the lines and Judges are, often, not impressed. Any  personal sympathy for the litigator involved is overtaken by anger (if not disgust) with the firm that put the litigator in that situation.

Further it is doubtful whether the new fee earner is comfortable with the file.   I have been involved in cases, particularly for large firms, where the assistant solicitor given charge of the matter regarding  being handed the “problem” file as somewhat of a blot on their career. They have explained to me that they felt that even being associated with the file would taint their reputation and their prospects. Further because much of the time spent on the file could not be billed they were unwilling to spend enormous amounts of time on it.

Someone sensible, and experienced needs to take this on

If a decision is made that problem files should be moved on (and my Advice is that, subject to the views of the client, they should be at least for the purpose of solving the immediately problem) they need to be moved to someone senior and with considerable, patience, wisdom and experience.  There is an abundance of talent in our litigators and, in most firms, someone will fit the bill.  Dealing with problem files should be the pinnacle of the litigator’s career. With these files it is often your firm’s money and reputation at stake it is sheer folly to hand the file to someone who is uncomfortable with them, no matter how diligent they are.

Act promptly and act decisively

Usually this involves an application to the Court, or defending an application.  This is where things can go wrong and where golden opportunities are missed for things to go right.  Any application made hereinafter, should be perfect with the forms accurately completed, witness statements clear, concise and wonderfully drafted and everything lodged and served in good time.

The important thing here is to be clear about the decisions you are making and, if relevant (which it usually is), consult with your indemnity ins

  •  If the position is hopeless then it is prudent to recognised this at once and mitigate   the damage as much as you can.  Hopeless applications to the court will only increase costs.
  • Even if the position is, apparently, hopeless there may be other escape routes. For instance  the law relating to service of a claim form within the four month period is extremely strict.  It will be rare for a court to grant an extension. However:-
  •  If the limitation period has not expired you can issue again.  (This is not, automatically, an abuse of process).
  • If the limitation period has expired, in personal injury cases,  then you can make an application under Section 33.

The case may require some lateral thinking. However if the position is hopeless then you must advise your client to go elsewhere.

If the position is salvageable then there are two rules:-

*           Don’t make the position worse.

*           Do what you can to make the position better.

THE FIRST APPLICATION TO THE COURT IS THE ONE THAT COUNTS

Never make a half-hearted or half-baked application to the District Judge or Master assuming that, since this is only a trivial default, then relief will be granted.  This is an extremely dangerous assumption.  Firstly the judge may not share your assumption, secondly if you fail in your half-baked attempt this is, effectively, the end of the line.

If you have made a half-baked application to the District Judge with half the evidence missing then, the chances are, the appeal will be considered with only half the evidence available.

DRAFTING THE WITNESS STATEMENT

My advice here is based on this cumulative experience of (at least) several hundred applications in relation to sanctions, relief and limitation, (in other words you are learning from the mistakes made by other people).

 (1) Be honest

If you, or  your firm, have  made  a mistake admit it.  The person responsible, or the partner responsible for the department, should state clearly that they admit responsibility. In many cases this is blatantly obvious in any event, however most judges respond positively to admissions of responsibility. (All this may be subject to the views of the indemnity insurers).

(2) Be prompt

The issue of delay in making an application is always a relevant factor.  Any application should be made within days, not weeks.

(3) Offer explanations and not excuses

This is closely allied to point number (1) above. The court is entitled to know how a party has got itself into this situation and is equally entitled to a detailed explanation. Give the court a clear and concise explanation make it clear that this is an explanation and not an excuse.

(4) Put any default right before you get to the hearing

If you are in default of certain steps and have been guilty of delay then make sure that those steps are taken before the hearing of the application. There is no need to delay the making of an application until the steps are complete, a separate statement can be sworn at a later date if necessary. However if, by the time the matter gets to a hearing, you have taken those steps then this is of great assistance, both to your case and to the court. Do not be put off by any consideration that the costs involved in taking these steps could be wasted, do them and do them properly.  A vague promise that these steps will be taken “soon” will not suffice. The facts that the steps have been taken will not guarantee success but will help considerably.

(5) Offer a definite plan of future action

If there are any matters outstanding when the matter reaches a hearing explain the reason for this to the court and offer a definite plan of future action together with a rigorous timetable. Make the timetable both rigorous and realistic,  many judges will respond to the offer of a timetable and, particularly if there has been a history of default, impose a series of peremptory orders. If you have suggested an unrealistic timetable then you are creating further problems for yourself.

IF YOU LOSE

If you lose at the application before the District Judge or Master:

  • Consider appealing. However remember the limitations and difficulties outlined above.
  • Remember there are only 14 days to lodge the appeal.
  • If you are going to appeal be careful to get it right. File the right documents, give proper grounds of appeal and file a proper skeleton argument.

IF YOU WIN

If you win you cannot afford to relax.

  • Consider who should deal with the matter in the future.

(1)  The matter should not, necessarily, be handed back to the original fee earner (although much depends on the cause of the original problem).

(2) Sometimes a partner takes over conduct of the matter. If the partner is not familiar with this area of the law, or has insufficient time to deal with the matter, this does not help.

  • Whoever deals with the matter steps should be taken to ensure that the situation is explained to the client and that the action stays on the rails in the future.

LEARNING FROM THE EXPERIENCE

An important point here is that the contingency planner should make sure that the whole firm benefits from the experience of any file that has gone wrong. Steps must be taken to:-

  • Ensure that the cause of the problem is identified and steps taken to deal with this.
  • If the problem is one of a system breaking down then the system must be remedied.
  • If the problem is one of overwork then the litigator’s workload must be examined.
  • If the problem is one of an individual litigator’s ability. Then consider re-training or re-allocation.
  • Do your very best to ensure that the specific problem never arises again.

THE CRUCIAL POINT: ENCOURAGING CANDOUR WILL SAVE MUCH TIME AND MONEY IN THE LONG RUN

What is very important is that staff are confident that they will receive help if they rely on the contingency plan. If your staff are not confident of this then mistakes will get hidden or (usually bungled) attempts will be made to remedy the situation. In these circumstances the plan is useless. The earlier you deal with problems the better.