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