The preparation of thorough file notes is a core part of prudent legal practice and something practitioners should aim to fine-tune. The importance of a detailed file note cannot be overstated, both as evidence should a negligence claim ever arise, as much as for matter management, continuity and reference.
‘I don’t recall, Your Honour’
LPLC sees many examples where, on investigation of the circumstances of the claim, file notes are inadequate in their detail or completely absent. Not only does this make it difficult for a practitioner to remember the details of a matter that may have occurred years prior, it also adds to the difficulty of defending the claim.
Judges and the courts place a great weight on contemporaneous file notes when considering evidence. An example of this was seen in the case of Sewell v Zelden  NSWSC 1180 where Justice Rein favored the evidence of a client over their former solicitor in a dispute about advice given, due to the absence of any written record casting doubt on “whether the advice was given at all.”
What should be in a good file note?
3 things a thorough file note should include:
- When it happened - date of the meeting/discussion/occurrence. Time of day and duration.
- Who was there - names of who were in the meeting/discussion/occurrence
- What was discussed - record of discussion, substance of advice given, the client’s response to the advice and any instructions given. Use plain language that can be understood widely and by whoever may read it in the future. Ensure it is legible and written as a note for the purpose of the file, not a ‘note to self’.
The content of the file note and detail included in it will vary depending on the complexity of the issues addressed. The note needs to contain enough information to indicate the relevant content of the discussion and help any practitioner who is acting on the file understand what has happened, and in the case of subsequent claim, support the practitioner’s recollection later.
LPLC has created a very basic generic File Note MS word (.dotx) template for practitioners and firms to download, adapt and use to create electronic file notes.
LPLC has also prepared some prototype file notes that practitioners may use in certain common scenarios:
What common scenarios do you have that you could develop prototype file notes for?
As technology evolves there are also various ways to keep a record of what was discussed at a meeting, whether it is by using dictation software that automatically types the lawyer’s end of the conversation on the phone call or devices that record the meeting (with the client’s consent). In some cases, some firms have two people attend the meeting so one can focus on taking a good record of what was discussed. It is worth spending some time investigating what system will work best for you.
A lawyer will handle many matters requiring documentation over the course of their career and making it a habit to produce detailed file notes not only contributes to quality legal practice but could make all the difference if a claim goes to court.
- Prepare file notes in real time at the meeting and finalise shortly following to ensure accuracy.
- Ensure they are legible, minimise jargon and anyone could understand them
- Make them a note to file, not a note to self. Could another lawyer pick up this matter and have all the information they need from the file notes?
- Utilise available technology to streamline the process – eg templates, recording.