In almost every case it is critical to meet face-to-face with your litigation lawyer for the initial conference. By the time of the first conference the steps in instructing your lawyer should have been completed as that will greatly facilitate the conference and help you make good use of the time (and money spent).
Your Lawyer Is Only As Good As Your Instructions
Litigation lawyers do not have a "magic wand". Ultimately, their advice is only ever as good as the instructions. So if the instructions are incorrect, missing critical facts or is otherwise deficient then the lawyer's advice will be lacking because it is based on the wrong facts. As such great care should be taken to give your lawyer the "true picture".
- Delays - if you wait a long time before seeing your lawyer then chances are memories have faded. Sometimes we see clients who want to dispute verbal contracts entered into some 5 years beforehand. In those cases, unless there are good records about what was said, there will almost certainly be a long dispute about who said what, and what it all meant.
- Be frank and honest - in most cases there is no point in witholding information from your lawyer. If your case has weaknesses then they are best dealt with early on and as a client you should resist "colouring" your evidence once it becomes clearer what issues are contained in your dispute.
- Make your goals clear - some lawyers assume you want to adopt a particular process, and no doubt that is the default position unless you tell your lawyer exactly what outcome you are after. Explain your goals at the outset especially if you do not want to damage your relationship with the other side irreparably. For instance if you mediate a dispute you might still be able to have a relationship with the other party but if you go straight to court then that is unlikely.
- Do not leave anything out - it is not unusual for our firm to have sophisticated clients. Such clients, which include business people (and even lawyers), often want their commercial litigation lawyer to only deal with a discrete aspect in isolation based on a judgement meant by that person. Often that is unwise and the best approach is to "lay your cards on the table". Ultimately, your lawyer should make the judgements about what is and is not relevant rather than you, especially if you are a sophisticated client.
Things Your Lawyer Cannot Do For You
- Reasonable prospects - Clients generally assume that if they want their litigation lawyer to commence proceedings then the lawyer is obliged to do so. That is plainly wrong since a lawyer is prevented from commencing or defending proceedings which do not have reasonable prospects for success. Before a case is filed the lawyer is required to sign a certificate that assures the court and parties that the lawyer considers that case to have reasonable prospects for success [see: cl 4 of Sch 2 of the Application Act].
- Changing your lawyer's drafts - Over the years our firm has acted not only for private and business clients but also for other litigation lawyers (and even barristers). Some clients, especially lawyer and barrister clients, often ask their lawyer to change draft letters to the other side because they want the wording to be stronger. Whilst we appreciate suggestions for legitimate changes to letters that genuinely advance a client's case many of the suggested changes made by some clients are purely made to portray a position of strength which is to be discouraged if that is its main and only purpose. Moreover, a lawyer has to be careful about what they say in correspondence to avoid the possibility of saying something misleading and in many cases that is done by qualifying statements rather than putting them forward as fact. As such not all of the suggested changes made by sophisticated clients can be accepted without amendment and proper consideration. Ultimately, whatever is said in a letter needs to be clearly supported by evidence. Do not be surprised in this type of scenario if your lawyer says that the amendments suggested cannot be implemented.
- Correcting false or misleading statements - It is not possible for your lawyer to convey something that is false in correspondence to the other side. Your lawyer has an obligation to correct it or if you as the client is unwilling for the lawyer to correct it then the lawyer may need to withdraw from the matter altogether. Again, if you say something it needs to be supported by evidence. Your lawyer is, as the expression goes, not just a mere mouthpiece for you.
For our lawyers litigation is the focus, so give us a call to discuss your case.
* Disclaimer:- This publication contains general information which may not suit your particular needs or circumstances. It may be summarised and include generalisations. Details that may be important in your specific circumstances might not be included. Litigant strives to ensure that the information in this publication is accurate and up-to-date, but does not represent or guarantee that it is accurate, reliable, current, complete or suitable. You should independently evaluate and verify the accuracy, reliability, currency, completeness and suitability of the information, before you rely on it. The information in this publication is not legal or other professional advice. You should obtain independent legal or professional advice that is tailored to your particular circumstances if you have concerns. To the maximum extent permitted by law, Litigant excludes liability for any loss, however caused (including by negligence), relating to or arising directly or indirectly from using or relying on any content in this publication. Litigant asserts copyright over the content of this publication.