Key Risk Checklist: Risk management strategies for litigation

30 September, 2014
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Risk management strategies for litigation

☐  Before accepting instructions in a matter carefully consider whether you can act:

  • for this client
  • in this matter
  • at this time – and do so bearing in mind the duties you will have to that client and the court

☐  Communicate with the client at the very beginning about:

  • who the client(s) is/are
  • who will give you instructions and their authority
  • the facts of the matter
  • what the client wants out of the process
  • what you can realistically provide
  • how the litigation process works
  • how much it will cost clearly, honestly and accurately (most important)

☐  Maintain regular communication with the client throughout the matter and in particular:

  • focus on managing the client’s expectations and how best to communicate key issue
  • keep the client informed about the costs incurred

☐  Maintain civil and respectful communications with the court and other parties, and in particular:

  • respond to all offers of settlement or requests for negotiations etc
  • advise the court and other parties promptly when you know of issues that may cause delay such as unavailability of counsel

☐  Be organised and efficient in the management of your files, including:

  • send a retainer letter that accurately describes the scope of the retainer
  • keep detailed file notes
  • confirm advice in writing
  • keep pleadings separately from correspondence

☐  Comply with court timetables and directions

☐  Brief competent counsel with full briefs

☐  Communicate effectively with counsel so that all relevant issues are canvassed and deadlines are met

☐  Maintain objectivity and focus on the issues, not the personalities

☐  Regularly review your strategy and advice as evidence is obtained and pleadings are changed

☐  Be conscious of your obligations to the court to facilitate the just, efficient, timely and cost-effective resolution of the real issues in the dispute when formulating your pleadings and preparing for trial

☐  Plead and argue only those points that have a proper basis

☐  Act decisively when an issue rises that means you should cease acting