Commercial Litigation Handling

- your professional liability risks

Why are we here?

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1 Professional Liability Risk Profile Analysis

Risks (see Risk & Control Map for details)• accepting unsuitable matters• acceptance of prospect with unrealistic expectations• inadequate/incomplete scope of work• conflict of interest• substandard legal work• missed deadlines• failure to obtain, follow or update instructions• failure to recognise emerging conflicts

Why are we here?

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1 Professional Liability Risk Profile Analysis

Causes (see Risk & Control Map for details)• Lack of screening & acceptance guidelines & processes• Lack of policies & processes for acceptance of client and matter; basis

of engagement (scope, costs, outcomes, time, service levels, client requirements)

• Lack of standardised work practices (matter planning; file review; resource management; supervision; sign-off; conflict protocols; confirmed variations to scope, etc.)

• Failure to train in the above and review effectiveness

Why are we here?

Consequences• Financial loss – repayment of fees*; loss of billable

hours; payment of insurance excess; possible claims loading; payment of claims over $2m (if no top-up insurance)

• Reputational damage

*not uncommon to see repayment of fees >$100k

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What about the legal issues?

• Substantial number of claims are not caused by legal mistakes• Poor/inadequate practices and procedures give rise to many claims• These claims are avoidable by adequate having adequate

management systems in place• By and large, the legal issues are managed by tertiary educational

requirements and CPD (both internal or external) which are mandated• It is your choice to adopt adequate management practices• Think of them as your “financial” health & safety practices

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Stefan SudweeksStefan has been a commercial litigator for 26 years, the last ten of which specialising in Professional Risks, D&O, Errors and Omissions, and Property Insurance issues. Prior to this Stefan’s focus was on insolvency, securities and company reconstruction.Stefan acts for a wide range of professions including barristers, solicitors, members of the finance industry, engineers, estate agents, surveyors, valuersand accounts. He has also been involved in a number of subrogated property recovery claims. Stefan acts for a number of Australian insurance companies as well as for various Lloyd’s Syndicates based in London. Stefan has presented a number of seminars on insurance and insurance related issues to both the insurance industry and his peers. He has also published several papers on developments on liability.

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Geoff Hancy

Geoff is a senior and highly experienced barrister who has represented clients in many trials and appeals as well as in mediations and arbitrations.Geoff has drafted legal tender guidelines and practice standards for litigation lawyers seeking to act for an insurer. He was selected and acted as legal adviser to the Western Australian Legislative Assembly’s Economics and Industry Standing Committee during its Inquiry into the 2011 Kimberley Ultramarathon fire.His national reputation in insurance law was recognised in 2006 when he was awarded the Australian Insurance Law Association’s annual Insurance Law Prize for substantial contribution to insurance law and insurance law education.

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Cameron Syme

Cameron holds Bachelor of Laws (Hons 1) and Bachelor of Commerce (Accounting) degrees and is a Director of the Albany law firm, Latro Lawyers. Cameron has 10 years’ experience as an accountant and 16 years’ experience as a lawyer. Cameron completed the inaugural WABA Bar Readers Course in 2004. Cameron practices in litigation, commercial law, dispute resolution, negotiations and strategic planning. Cameron currently has matters in the Magistrates Court, the District Court and the Supreme Court of Western Australia.

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STRUCTURE OF SEMINAR

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• Introduction• Stefan – Risks and controls around client and matter acceptance;

limited retainers• Geoff – Litigation strategies; engaging and the role of Counsel• Cameron – Risks of change, settlement and dissatisfied clients• Panel Discussion and Questions

What you should look out for during this session

– Client screening

• Are you the right firm for the client? (expertise/capacity)

• Is the client right for the firm? (conflict/identifying the high risk client)

– Client engagement

• The written retainer (including the limited retainer)

• Cost disclosure

• Conflicts14/11/2016 Law Mutual (WA) 10

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Screen Client and matter

• Do you have the expertise• Identify the high risk client• Controls – refer to Phase 1 of Risk & Control Map

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Engage Client

• Limited retainers and retainers generally• Conflicts• Cost estimates• Controls – refer to Phase 2 of Risk & Control Map

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What you should take away from this sessionNo magic – the same issues as foreshadowed at the start

– Client screening

• Are you the right firm for the client? (expertise/capacity)

• Is the client right for the firm? (conflict/identifying the high risk client)

– Client engagement

• The written retainer (including the limited retainer)

• Cost disclosure

• Conflicts14/11/2016 Law Mutual (WA) 16

Geoff Hancy

Introduction• Road mapping• Managing information in litigation

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Managing Information in Litigation• Introduction• Look forward to the trial• Ask yourself:

– What order should the Court make– Why that order should be made

• Case Concept• Road map what you are going to do

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Process drivers

• Case concept and case strategy• Key elements:

– Knowledge– Analysis– Simplification– Structure

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Process drivers in action

• Brief

• Written opinions

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Key documents

• Brief, written advice, closing submissions• Process should also generate:

– Brief index– Evidence chronology– Written opinion, or a series of opinions– Advice on evidence– Opening submissions– Action list

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Brief

• Documents that may be used at trial• Start preparing at the outset• Structure• Conformity with submissions• Brief index• Colour code• Colour reproductions of photographs• Re-evaluate brief structure

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Written opinions

• Summarise and analyse evidence and law• Use topic headings• What you have • Must think about other issues• Updated opinion

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Evidence chronology

• Summary of evidence in date order• What a witness did, saw, heard, read or wrote• Every entry – Time, place, action• Comment section – pertinent thoughts• Prepare document by document and later sorted into time order• Facilitates preparation for trial

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Lead up to trial

• Evidence chronology• Advice on evidence• Written opinion• Opening submissions

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Role & Choice of Counsel• Task to be performed• In-house Counsel or Barrister?• When to brief• Match to task• Proof of expertise or experience• Portfolio of work• Internet databases

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Papers by Geoff Hancy, Barrister - Dispute Resolution - Civil & CommercialLink:

http://hancy.net/papers/dispute-resolution-civil-commercial/

Cameron Syme

• Risks arising through changes of lawyer and file hand over.

• Settlement and managing client expectations.• Dissatisfied Litigants

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Overview:

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• Process Risks and Content Risks • Who has the Risk?

• Former Lawyer and New Lawyer

• LPA & PCR

• PCR R6 – fundamental ethical obligations

• PCR R10, PCR R28, PCR R30…

• LPA – eg s111(2)(3)(4) – Disclosure Obligations

• LPA – eg s106, esp (3)

Risks arising through changes of lawyer

• Access to documents • Solicitors Lien(s)• Undertakings - Unintended Risks?

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Risks arising through changes of lawyer

• Process Risks and Content Risks

• PCR R6 – fundamental ethical obligations• PCR R10• PCR R30• LPA eg s106

• The “C” Word - Communication

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Risks arising through file hand over

• When to make settlement offers?• When to manage Client expectations?• What is adequate cost & process disclosure?• Proportionality & de minimus• When do your ethical duties apply?

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Settlement and Managing Client Expectations

• The changing world of lawyers• Almost all litigants are dissatisfied• Cost, Process, Content • It’s not my argument• It is your fault

• How to manage the Client – at the outset

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Dissatisfied Litigants

Risks • Risks are everywhere• Watch for the risks you don’t control• Consider process and content risks

Expectations• Whose expectation is it• Always manage expectations

Dissatisfaction • In litigation, everyone is dissatisfied14/11/2016 Law Mutual (WA) 35