Law Times

Law Times • November 6, 2017 Page 13 www.lawtimesnews.com rule for largely the same rea- sons they did under the old rule. Quite simply, some lawyers are not keeping their files moving and they are missing deadlines," he adds. Raymond Colautti, Landry's legal partner, says the firm's extensive tickler system means that the new rule had little im- pact on their practice. However, with the safety net of the court's notice of intent to dismiss gone, he says the impor- tance of lawyers documenting their progress is enhanced. "Sometimes, cases go on for more than five years, and there may be good reasons for that. Plaintiffs often struggle to move along against resistance from defendants who have little in- centive to keep up the pace," Co- lautti says. "Document any lack of co- operation or cancellations so that, when it comes to applying to extend the deadline, you've got everything where you need it. You have to be proactive and ready for that." After administrative dis- missals, Pinnington says mis- communication between law- yers and their clients is the next most common source of Law- PRO claims. For all the claims that litiga- tion files attract, LawPRO only ends up acknowledging negli- gence and making indemnity payments in about 14 per cent of cases, he explains. Half are resolved without any costs and the only expenses in another 37 per cent are defence costs, which go toward hiring outside counsel to work on be- half of insured lawyers. "In the litigation area, the biggest driver of claims is cli- ents that are unhappy with the result, the length of time the litigation took or the amount of their fees. The lesson for law- yers here is the need to make sure clients have a clear picture of the litigation process, the possible outcomes, the time it will take and what the costs will be," Pinnington says. For Landry, client intake is once again the starting point for managing expectations. Any clients the firm declines to take on are sent non-retainer letters in order to prevent them from getting the wrong idea. "If they've got a court date coming up, we make it clear that they need to get other represen- tation so that they can't turn around and say they thought we were going to attend for them," Landry says. For those whose files are ac- cepted, the approach depends on their level of sophistication. Landry says the firm's clients tend not to be institutional ones, which means they need a bit more guidance on the pro- cess. "Litigation is very unpredict- able. Our job is to advise about the potentially good outcomes but also the bad ones, which in- cludes adverse cost decisions and what they mean for clients so that they are prepared," she says. "The key is extreme organi- zation and then ongoing client management. It's their file and they need to understand what's happening with it." At Cambridge LLP, many of MacLeod's clients are more ex- perienced litigants, but he ad- justs his approach according to the individual. "As lawyers, we become al- most inured to the process, but if it's a client's first time, then a pre-trial can be a momentous moment," he says. "Get a sense of how sophis- ticated their knowledge is of the system, and find out the cycle they want to hear from you. I try to err on the side of over-communicating, because not many people will complain about you calling too much." MacLeod says he often spends time making the case against court to his clients. "Everyone wants to go to tri- al, but nobody wants to listen to the consequences of a loss, even though that's the outcome for 50 per cent — you rarely get a tie in court," he says. "You need to make sure that if they give the green light to go to trial that they're going in with eyes wide open. I'm careful not to upsell a case and will take a conservative view of a case to set their expectations appropri- ately." Despite the prevalence of email in all aspects of life, Mac- Leod says he tries not to rely too heavily on this type of com- munication when engaging ei- ther with clients or counsel on a file. "When you're f lippantly emailing back and forth, it be- comes like a broken conversa- tion," he says. "I find it's useful to formally correspond with clients and ac- tually draft them a letter at cer- tain stages. "Even if you send it by email, it helps to get into that formalis- tic mode and clarify how things stand." 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Raymond Colautti

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