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LIV President's Blog 2014

LIV President's Blog 2014

Geoff Bowyer, LIV President 2014 on the latest issues and topics. Read and comment.

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What do you do when a case falls apart

What do you do when a case falls apart

Well, all codes of football have now finished for the year, and watching my preferred teams go down in the grand finals (with a thrashing) turned my mind to how tough it can be when you suddenly realise that you are on the losing team. As lawyers, we are regularly subjected to the tough, competitive environment of the courtroom, and we can’t all win all the time.

So what should you do when you realise that your case is falling apart and you are going to lose?

Advise the client – fast. Provide a comprehensive update to the client as soon as you can. Take the time to gather all the necessary information, gain advice if necessary then meet with them as soon as possible face to face. It’s essential to adjust their expectations. Recognise that often the client will be very angry – this is never pleasant but remember it’s not personal. You need to be able to clearly explain why the previously expected outcome is now unrealistic and what the new likely outcome will be.

Document any discussions with the client, including the who, what, when, where and why (especially the why). Make sure it’s in writing and a copy provided to the client promptly. Email is fine, but follow them up even if you cringe at the likely disappointed client response

Talk to your boss or trusted colleague. It’s critical to advise your principal as soon as possible. Their advice may prove invaluable, and it can be beneficial to seek their involvement in ‘the talk’ with the client. If you are a sole practitioner, it may be useful to seek out the counsel of a trusted advisor or peer which can be useful in alerting a client that you have sought a second opinion which backs up your view.

What’s the alternative? Now is a good time to explore the opportunity of a resolution via compromise and settlement rather than pursuing the case in court further. This may reduce the client’s exposure to stress and expense. I often say the only certainty of prolonged court proceedings is the uncertainty of the outcome.

Include all parties: If a barrister is involved in the case it’s important to have their input into these discussions, but ensure you retain an active role in all negotiations and settlement discussions.

Is there potential conflict? You need to consider if you have a conflict because something has occurred that you didn’t forecast - and perhaps you should have. And if, upon review of the facts and after a discussion with a trusted colleague, you believe there is a conflict, you may need to refer your client for independent advice. If you need assistance on this matter, you can contact the LIV Ethics Advice Line on 03 9607 9336 - theyhave helped me out on a number of occasions

Protect yourself from the stress: It can be very stressful and disappointing when a case you were sure you could win becomes clearly unwinnable or settlement outcomes diminish. Protect yourself by eating well, getting enough sleep, exercising and spending time with family and friends. Discuss it with work colleagues as you will find that all lawyers inevitably find themselves in the same position and discussion is often the best medicine. If you’re having a lot of difficulty coping with the stress of being involved in a case that is rapidly unraveling, call the Vic Lawyers Health 1300 664 744 for confidential, independent support.

It’s worth remembering that if the case was completely clear cut, it probably wouldn’t have been in court in the first place. So no matter how much of a winner the case appeared to be at the start, there is always a solid chance that things may fall apart.

We all lose cases, even the seemingly unlosable ones. So take solace in the fact that you are in good company. Talk it out with friends and family, allow yourself a glum night, but then pick yourself up and get back to it. Your next client is counting you to perform at your best in the morning, and their future may rely on it. And there is nothing like winning your next case to restore your confidence.

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David Forbes
Very good advice.
10/10/2014 9:55:35 AM

Geoff Bowyer
Thanks for the response Michael. Rightly or wrongly our clients often judge our profession unfairly on a win\loss outcome regardless of how often we spell out the uncertainties of litigation. By the very nature of our training and often the adversarial environment of litigation (and we all aspire towards mediation and ADR alternatives) it is often difficult not to invest emotionally in the “result”. Getting the balance between treating a client claim dispassionately but ensuring everything within your control is optimally performed is the challenge, but achieving the balance takes time and we need strategies while we develop these skills.
9/10/2014 2:02:01 PM

Good advice regards file management that can often roll over into stressful situations, but perhaps it is just a case of practitioners taking matters too much to heart, we should remember that we are members of the profession and contrary to the beginning of your last paragraph we do not lose the cases it is our clients who lose the cases and it is when we feel that we have lost the case that we suffer stress, we should as professionals be able to maintain professional distance. Additionally the possibility of the client losing the case is something that should have been properly covered first in the legal practice information statement and initial letter of advice and second by way of regular reviews, all well before "crunch time".
9/10/2014 1:55:33 PM

Thank you for writing this - the last paragraph is gold.
9/10/2014 12:53:10 PM

As always your writing is of interest to the profession, however, I am not sure about your viewpoint when you say "we all lose cases", perhaps that is not the correct approach because as professionals we do not lose cases, it is our clients who lose, and in my experience it is those of our profession who cannot maintain that separation who suffer stress.
9/10/2014 12:52:56 PM

I really do appreciate your blog posts - they are so wise, human and practical. Much appreciated.
9/10/2014 12:18:27 PM

Another relevant and thought provoking article. Please keep it up!
9/10/2014 11:30:09 AM

Mary Louise Hatch
Great advice Geoff.
I couldn't agree more about the uncertainty of litigation. Clients and their lawyers should always consider using mediation to try and settle the dispute as early as possible. Not only is it far cheaper than litigation but it allows each party the chance to co-create their own outcome which is workable and enduring.
9/10/2014 11:08:05 AM

Excellent advice it is very refreshing to see some actual practical advice about a very real and stressful situation
9/10/2014 10:49:48 AM

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