TEN NEW YEAR’S RESOLUTIONS FOR LITIGATORS IN 2016

Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year)

1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT)

Litigators of all types must have a clear idea about the relevant limitation period in every case they handle. It is unwise to “guess”, certainty is required.

Similarly there are numerous cases where the client themselves have been woefully inaccurate about the date of an incident. I regularly see cases where clients are months (sometimes years) wrong in the date of an accident, for instance.

Don’t guess – know

 

2. KNOW THE ADDRESS AND DATE FOR SERVICE OF THE CLAIM FORM (AND I MEAN “KNOW”)

This blog regularly reports on problems with service of the claim form.

  • Know the rules about service.
  • Know the address for service.
  • Know whether an address for service has been nominated.

Don’t guess – know

3. HAVE A SYSTEM IN PLACE IN RELATION TO SERVICE OF THE CLAIM FORM

Here I mean a system for monitoring whether an address has been nominated and double-checking prior to service.  Claim form errors remain some of the easiest procedural mistakes to make and the hardest to put right.

If you don’t have a system then mistakes are going to happen.

 

4. THINK VERY CAREFULLY BEFORE SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT

You should know off by heart this wording  from Practice Direction 22 – Statements of Truth.

“3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).”

Know that if anything goes wrong then the client will probably blame you

 

 

5 . KNOW (OR LEARN) HOW TO DRAFT A WITNESS STATEMENT

Many people believe they know how to draft witness statements. However (on my estimate) around 80% of statements do not comply with the basic rules. Sometimes, as we have seen recently, this can backfire badly.

  • Make sure that the statement, at the very least, complies with the rules and practice directions.
  • Worry, a lot, if the statement is basically all opinion and no “evidence”.
  • It helps a little if you know a bit about the law of evidence.

Witness statements are usually the key documents if matters proceed to trial. Again, if things go wrong, a witness will usually blame the person who took the statement.

 

6. LEARN HOW TO PROVE THINGS

This may seem like a basic requirement. However many cases fail at trial because there is simply no evidence to prove key points. This is particularly the case with damages. Last year we saw cases, at all levels,  fail because of a very basic failure to adduce evidence of loss

  • Proving things by evidence: another example of an absence of evidence leading to a case failing

If you can’t prove it then you don’t get it.

7. LEARN HOW MUCH THINGS COST (AND HOW MUCH YOU ARE GOING TO GET)

One of stated aims of the Jackson report was to make us all “cost lawyers”. That is with an awareness of the costs of litigation.  This is now (and always should have been) an integral part of the litigator’s role.  Further once the budget is set you have to be very aware of the consequences of costs going beyond this, and the major difficulty in recovering costs.

If it isn’t in the budget then you are going to struggle to get it

 

8. BEWARE YE OF EXPERT WITNESSES BEARING GIFTS

Know, define and limit the role of any expert in a guess. Be particularly wary of the “partisan” expert witness.  The main danger is to the party instructing them. They can give an impression of false strength and costs can be incurred, and wasted,  by an “over-enthusiastic”  expert.

The wrong expert can cost you the case

 

9. LEARN ABOUT E-DISCLOSURE

Like it or not electronic disclosure is here to stay in all forms of litigation. In personal injury it is social media. The basic rules and mechanics of edisclosure now have to be understood by everyone.

Electronic records are growing by the minute. Learn which ones are important and how to retain or obtain them

10. PREPARE GOOD BUNDLES FOR EVERYTHING

It is always a surprise, but it always true, that a post on trial bundles is the most popular post on this blog. Trial bundles have been the target of some very astringent judicial criticism. Know the rules and ensure your bundles comply.

Bundles are more often criticised for being too long rather than too short

 

11 DON’T BELIEVE THE TITLE OF EVERYTHING YOU READ (GET EVERYTHING DONE AHEAD OF TIME)

This is a biggy (and I know it is probably impossible). Remember the law of sanctions remains stringent. Denton is not a recipe for indulgence.  Failure to comply with court orders can still have major consequences.  The best resolution is to comply.

Sanctions hurt and are expensive even if relief is granted

 

 

 

 

 

 

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