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Litigation Do's and Don'ts

 

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Over the years, there has been an increase in claims arising out of Litigation. In response to this, we isolated the Litigation claims and then looked at the circumstances giving rise to these claims. The following predominant causes were identified to which we have added a recommended 'do's and don't' list. We trust that the list below will assist practitioners in managing the risks in their practices and therefore suggest that the table be downloaded or printed and placed conspicuously for easy reference.

 

Incorrect Legal Advice

Do's

Don'ts

  • Familiarise yourself with the relevant area of law and any changes through research and continuing legal education.
  • Refer the client to a specialist if you are unable to give proper advice in the matter through inexperience or lack of knowledge
  • Accept cases outside your areas of expertise e.g. labour disputes, which have stringent time limits that need to be adhered to, complex conveyancing matters etc.

Under - settlements

Do's

Don'ts

  • Ensure in personal injury matters that your client's injury has stabilized and that you have updated medico-legal reports before advising client to settle.
  • Discuss the issue of fees and reach clear agreement, preferably in writing, on:
    1. The amount to be charged;
    2. the basis for such charge;
    3. whether the fees will be charged at the end of the matter on successful conclusion or otherwise;
    4. the issue of ongoing disbursements
  • Canvass in depth the risks inherent in litigation so that your client can make a final decision as to whether an offer should be accepted. Make detailed file notes of your discussion with client especially where he/she agrees or insists on accepting a lower offer.
  • Confirm the above instructions in writing.
  • Raise your client's expectations about the true value of the claim.
  • Settle or agree to settle without a full and frank discussion with your client
  • Use a power of attorney to accept an offer in settlement of a third party claim without discussing the offer fully with your client.

Client's claim/application dismissed, default judgment taken against client for various reasons etc.

Do's

Don'ts

  • Ensure that a proper diary system is instituted from the date of acceptance of instructions
  • Ensure that you have all possible contact details for client
  • Ensure that all court dates are included in the diary system
  • Check and adhere to special time limits
  • Ensure that documents are served in time or obtain an extension for service
  • Advise clients of time limits for appeals
  • Ensure the availability of clients' and witnesses.
  • Remember that an attorney has an ultimate responsibility to the court
  • Delay or neglect the client's case. It is probably the only one that he/she has. By doing so you open yourself up to allegations of Professional Negligence.
  • Withdraw as attorney of record at the last minute before an application or trial if your client has not paid your fees or has failed to provide you with instructions. Rather proceed with the matter and if possible request a postponement in order that you can trace your client and place him/her on terms.

(A court can call for an explanation from an attorney who has withdrawn late in the proceedings and could even award the costs against that attorney (costs de bonis propriis)

Lack of communication with clients'/ colleagues in office, not carrying out mandate correctly, not making file notes etc.

Do's

Don'ts

  • Read your letter of instruction carefully and note specifically everything that needs to be done. If in doubt, obtain clarification from your client.
  • Return all telephone calls and keep the client advised of developments
  • Use the diary system and devise a practical system of office monitoring of important dates
  • Encourage the client to communicate with you and ask questions.
  • Strive to make the client feel comfortable, relaxed and confident as to your ability and good intentions
  • Make file notes at the end of all telephone conversations and consultations and confirm these in writing.
  • Ensure that all aspects are recorded in the file so that a colleague can take over the matter in your absence.
  • Hesitate to discuss with your client all potential risks, problems and alternatives pertaining to his/her case.
  • Assume that you always know what is best for your client.
  • Take it for granted that because your unsophisticated client can speak some English/ Afrikaans that he/she can understand you. Obtain the services of an interpreter to prevent misunderstandings

Undue delays in proceeding with a matter

Do's

Don'ts

  • Know the court rules.
  • Make an office policy of retrieving briefs from counsels who do not perform and setting time limits in which counsel must perform. If necessary, the brief must be retrieved from counsel and a duplicate brief must be sent to another counsel if time becomes of the essence.
  • Communicate with the client about the delays in the case and where the client is causing the delays, set out in writing the consequences of continued delay and any relevant time limits
  • Let briefs languish with counsel. Find out and act on what further information counsel requires.
  • Leave the preparation of pleadings and notices for the last minute as delays can occur which may be beyond your control e.g. In the Sheriff's office etc.

Failure to adequately prepare for trial

Do's

Don'ts

  • Prepare fully and timeously
  • Consult thoroughly with client and witnesses
  • Provide counsel with complete instructions for the purposes of trial
  • Prepare your Advice on Evidence or get Counsel to do so
  • Serve notices timeously
  • instruct the appropriate experts
  • make proper discovery
  • allow sufficient time to compel your opponents to comply with notices
  • be present at the entire trial in order to support counsel.
 

Wrong party before court (non-joinder, misjoinder, no locus standi etc)

Do's

Don'ts

  • Read your instructions and the documentation carefully to ensure that you have issued proceedings in the name of the correct plaintiff (often proceedings are instituted in the name of the client when in fact the cause of action belongs to the client's company).
  • The necessary research to ensure that you are suing the correct defendant (it often happens that once a matter has already prescribed, it is realised that directors of defendant companies or related companies should be joined as parties.)
  • A Company search when suing companies or close corporations as there are often name changes to the Co. or CC and the wrong entities can easily be sued.
 

Counterclaims for Professional Negligence arising out of fee disputes

Do's

Don'ts

  • Take a sufficient deposit
  • Account to your client on a regular basis
  • Keep your client informed on an ongoing basis about costs, the likely success of the case and any delays that may occur and how these delays may affect the costs.
  • Maintain detailed records and documents, which will support your claim for costs.
  • Consider the possibility of any allegations of negligence before issuing cost recovery proceedings and weigh up the costs involved.
 

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