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Running a litigation file

Running a litigation file

By Simon R Grant

Planning Time Management 


The first thing you need to do is assess what you have in front of you. Don’t just accept the file note from the solicitor now departed that says everything is fine, the client has been asked to do a few things, and matters can wait until they get back to us. If it isn’t in some form of order, then your first question should be “Is this a ticking bomb?” So look. You don’t want to find out that you missed a court date or an order to file something. When you are the first person in the firm dealing with a matter, in some ways this is simpler. If you inherit a file, then get it in order. 2. Keep the file in order These sections are my personal preference. Generally the documents within each section should be in chronological order. Whether earliest first or latest first, they need to be in order. The order can be different between sections, for example, earliest first for court documents, latest first for correspondence. Court documents – every document either filed in or issued by a court, tribunal, commission or registry should be in this section. Don’t leave it stuck to the back of the letter from the other side or the registry and file it somewhere else. Correspondence – every letter between you, your client, the other party and the court should be placed in the correspondence section. I can recall any number of times where a letter was referred to in one document on a file I had inherited, but was nowhere to be found. Clients’ instructions and documents – this is the most complex section. Ultimately the documents will need to be separated into individual documents for disclosure purposes. Do this from the beginning of your conduct of the file. Research – relevant legal research and other relevant information obtained by you should be placed in this section. This might include internet searches, notes, and other documents. Miscellaneous – everything else, all the information you have acquired that is not really relevant to the other sections and perhaps drafts of advices, goes here. 3. Work out the timeframes that apply and note them down There are always timeframes relevant to litigation. In some matters there may be more than one. Some due dates may seem far off. They aren’t. All jurisdictions have similar and varied legislation relating to time limits and once you have an action commenced, the rules of court procedure keep the parties moving along. 4. Get statements I spoke to a number of colleagues in chambers about this article, to glean ideas for further content. All immediately focused on one thing – “Tell them to make sure they get a statement from the client.” Take heed of such uniformity. You should start preparing the statement from the time of your first instructions. It should be a recitation of the relevant facts known to the client in chronological order. It should be broken into numbered paragraphs. Try to keep the content of each paragraph limited to one concept or idea. And keep asking questions about all the information given to you – who, when, where, why, and what documents, emails, notes or other facts has the client got that support their statement. It is surprising how much more information can be obtained if you visit a client, rather than them visiting you. The ability to talk to people “on the ground” can be invaluable. In one case, a throwaway comment led to establishing that an incident occurred 50 metres over a boundary on another property. 5. Read the documents forensically Not just the “relevant content”, but the document in its entirety. For example, if a document has a fax header-line on it, where was it from or to, and when? With electronic documents, take the time to look at the “file properties” of any key document. These little things can matter. In one matter I noted a doctor on an x-ray report who had not been identified as having treated the plaintiff. His files led us to evidence that won the case for the client. You are never given all the documents on the first request. Your job is to ensure the client understands that everything is relevant, even to just get the “big picture”. Clients will self-censor. Dissuade them of this notion as you take the statement. 6. Chronologies allow you to see holes in a story, as well as the conflicting points A good chronology will have every factual event listed, with at least three columns detailing when the event took place, a description of the salient facts of the event and also where the evidence of that factual event was obtained from. Where documents differ on the facts, then you need to ask why. People can be mistaken as to timeframes, or content of documents, but such differences should be identified early. 7. If you come to me with a problem, but no solution, you are part of the problem Talk to your colleagues. They will have ideas on how to handle a particular problem. But do not become someone who has to be spoon fed everything. Guidance will be better achieved if you, yourself, come up with the solution. Conclusion If you get yourself into a habit of doing the little things early, then as the bigger things come along, you will be able to stay more in control. SIMON R GRANT is a barrister, author and presenter who practises from Brisbane. This article is a summary of a longer paper available at www.simongrantbarrister.com.au

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