An informed client is the best risk management for personal injury lawyers

4 November, 2016

LPLC has recently refreshed our Pitfalls in personal injury litigation practice risk guide. As part of this process, we reviewed the claims against personal injury practitioners acting for plaintiffs. These claims continue to show the need for practitioners to manage not only the law but also the client and the retainer.

More than 25 per cent of the cost of personal injury litigation claims in recent years can be attributed to poor communication. In one claim, the practitioner made a cursory assessment of ‘no negligence’ at the initial conference with a client, without fully exploring the detail underlying the circumstances of the worker’s lifting accident. The letter of advice to the client did not articulate the reasoning why a negligence claim was not viable.

Years later, a more thorough investigation revealed clear evidence of inadequate lifting systems to support allegations of negligence. Had more detailed questions been asked of the client initially or a letter of advice explaining why there was thought to be ‘no negligence’, the worker’s rights could have been identified and pursued before they became statute-barred.

It is essential to find out what the client’s expectations are and manage them from the outset. Explain the litigation process, including the limitation period (and confirm it in writing), the steps to be taken and the time the matter could potentially take to resolve. Be clear about the costs that will be involved including disbursements and how you are to be paid. Continue to communicate with the client throughout the course of the matter. If the client terminates your retainer re-state the limitation period in writing if proceedings have not been issued.

There are many instances where the client’s actions or refusal to accept advice will put you at risk. Where the client is taking a risk you must ensure that the risk is not transferred to you. For example, if the client will not consult a medical specialist or settle a matter as advised, you need to explain the risks so the client understands the consequences. It is important to use plain language and question the client to confirm they understand the risks.

Record that advice in a file note and then confirm this in a letter to the client. Make sure you include the client’s response to the advice you gave.