Paper presented at Australian Insurance Law Association (WA Branch) seminar at Perth, Western Australia, on 23 September 2009
The core work of liability and insurance law lawyers is resolving liability and insurance claims. The general questions for determination include liability for loss, value of loss, and questions of insurance indemnity. These broad issues in turn lead to numerous sub-issues that must be considered and determined.
The process of resolving claims issues produces information. Much of that information will be found in documents that were not created by lawyers – insurance documents, contract documents, invoices, claim documents, investigators’ or loss adjustors’ reports, and correspondence. In addition lawyers will play an important role by obtaining statements from witnesses and opinions from experts. The extent of information that is generated might range from comparatively minimal to thousands of documents.
An organised approach to management of information aids timely and appropriate resolution of a claim; preferably by a settlement.
My paper offers suggestions on steps to take to manage information with the objective of enhancing the prospects of timely resolution or success at trial.
The views that I will express have been formed from my own experience, and a process of trial and error, over many years of practice as a trial lawyer.
Look forward to the trial
I use the expression “look forward to the trial” in the sense of looking to the future. Assume from the outset that the claim (and indeed, every claim) will go to trial. Ask yourself what you, or your trial counsel, will be saying to the court at trial about:
In a few sentences you should articulate what the case is about, what you want from the court, and why the court should make the orders you want. This is the “case concept”.
Case management should start by thinking about the potential end point of a claim and working backwards. Almost all claims do not go to trial. However if we act as if every claim will go to trial we are likely to improve the quality of our case preparation work. I have started with the end of the litigation process because what you do and the decisions you make about managing information will be controlled by what may happen in the future.
At the outset you must road map what you are going to do, bearing in mind the potential future destination is a trial. At a trial your views of the factual and legal relevance of the evidence will be put to the test. Will you pass that test or not? Whether your assessment before trial was right or wrong will be decided by someone else. A trial will put your head on the chopping block. How can you maximise the probability that that you have made a correct assessment and the Court will agree with you? Should your client avoid a trial and settle the claim?
Better knowledge of what can or can not be proved improves our understanding of the relevant facts and strengthens our ability to resolve a claim or make a better judgment about prospects in the event of a trial. Expect every claim will go to trial but hope (based on the reality of our historical experience with claims) that it will be resolved by agreement and on terms that your client can live with.
Case concept and case strategy
It is essential that you formulate a case concept as soon as you can. It will drive what you do. It should be kept under review as the claim progresses. As further evidence is acquired you may find it is necessary to change your case concept. That may lead you to change direction.
The case strategy is the methodology that you apply to implement the case concept. I will mention key elements of that process. Later, I will identify key documents that should be produced as you put the case strategy into action.
Knowledge, analysis, simplification and structure
The key process elements are:
In order to make sense of claim information you must know the law and the relevant facts. Invariably the “facts” are conclusions about what has happened in the past and those conclusions derive from the evidence that has been left behind. That evidence will take the form of documents that were produced in the past, the recollections of witnesses, images of scenes and objects, or the actual objects. You must have and know your evidence.
The application of the case concept through the case strategy entails accumulation and review and analysis of evidence. That review includes an assessment, which like the case concept must be kept under constant review, of the legal significance of evidence as it is acquired and what further work must be done to find additional relevant evidence if required. Let your case concept guide your evidentiary enquiries but modify the case concept (or even abandon a case concept for another one) where that is necessary to explain the accumulating evidence. Your ultimate responsibility is to find out what is true rather than to build up a case to support pre-determined conclusions or presumptions.
The process of analysing the accumulating evidence is enhanced by simplifying the information. Simplification occurs through summarising evidence. This should take a written form. Analysis entails forming a view about what the summarised evidence means in terms of issues of liability, quantum and indemnity and the need for any further evidence.
The quality of your analysis will be enhanced by having a structured brief, reducing the analysis to written advice, and giving structure to the written advice.
Process drivers in action
All of this leads to the key requirements for and production of:
The brief is your library of the knowledge that is relevant to the claim. It contains evidence and other documents that aid analysis, such as pleadings, and documents that set out or summarise the relevant law. Its contents are likely to change over time as additional information is identified or acquired.
Written opinions simplify the knowledge and provide and record analysis of the legal relevance of the information in a structured manner. Advice is easier to comprehend, and it is easier to evaluate the strength of the advice, if it is structured. Structured advice will be easier to produce if you start by structuring your information. In order to produce structured advice you should imagine yourself both as solicitor and counsel and brief yourself to provide that advice.
Commit yourself at the outset to create a brief. That is a commitment to organise your information so that you keep it under control and give yourself a mechanism to know what it is and what it means. Give the brief structure. A well structured brief helps you to prepare well structured written advice.
The brief should change over time as new evidence is collected, or new court documents are created. Similarly it is important to review and revise written advice on an ongoing basis.
As you travel the journey from commencement of the claim through to trial a Brief, Written advice and Closing submissions are essential.
The process that generates the brief, written advice and the closing submissions should also result in creation of:
You should view as mandatory the creation of each and every one of these documents before trial. If any one of these documents is not produced there must be a very good reason. One good reason, for example, might be that the journey ended with a settlement so that advice on evidence and opening submissions were not required.
In a larger case you may wish to prepare an Action list (a “to-do” list) that sets out tasks that lawyers and others are required to do. This will resemble your recommendations for future action in your written advice. It should include sections for task, person responsible, whether outstanding and completion date.
The brief should be made from the documents that may be used at trial. It is important therefore that you have an understanding of what happens at a trial, what documents will be required to support written and oral submissions, what documents may be tendered in evidence, what copies are needed, and how counsel at trial will have most convenient physical access to relevant documents.
Many, if not most, of the documents that are accumulated for a claim will not be necessary for the trial. Some documents however will be obvious potential trial documents. They include pleadings (primarily, statement of claim and defence), witness statements, documents that were produced in the past that evidence factual allegations in the pleadings, and expert reports.
The process of preparing and maintaining a brief requires that you decide whether each document is or is not a trial document. Each document, or a copy, that you decide is a trial document should be placed in the brief. Only documents that contain information that is likely to be used at trial should be put in the brief. The process of thinking about whether a document should or should not be included in a brief should start as soon as you have your first claim document. You should start preparing the brief at the outset of the claim.
The process of deciding whether to include a document in the brief will be assisted if you ask yourself whether the document contains information that may be used at trial and, in the case of a possible exhibit, what would counsel say about the document at trial and what it means to the case.
The brief should have a structure. That structure should equate with the structure of your likely submissions. Documents should be placed in the brief according to relevant identified categories.
Submissions at trial often commence by referring to the admissions and issues that are identified from the pleadings. Typically the first category of documents in the brief is the pleadings.
Trial submissions will then address questions of anticipated evidence, including documentary material by category and identification of proposed witnesses, and may cover some aspects of relevant law and a summary of the case concept. It is convenient for the brief to be organised so that documents are filed in categories and that it includes sections for witness statements, the law, written submissions, and for other categories of relevant material.
Your task of preparing a brief will be aided by first preparing a brief index. This index is a list, in order, of the relevant categories of documents that are to go into the brief. You should take time to identify and articulate the categories of documents that you have, or should have, for the claim. Next, create a numbered list of categories in the order that you consider is the order in which the documents should be filed in the brief. This produces your brief index.
Each category in the brief index then becomes a heading for a tab in the brief. In my experience numbered tabs are unhelpful. Tabs in a brief should have words on them, to say what is the category of documents that will be found after the tab. Documents are easier to find in the brief if tabs use words and category descriptions rather than numbers.
In cases where there is a substantial number of documents that require numerous lever arch files it may be appropriate to colour code the brief files. It may be easier to find pleadings when you know that they are in, for example, the red file. Colours can be given to a file by coloured paper inserts for the front of the file and the file spine. The contents of the file should be indicated by the cover sheet and the spine.
A properly prepared physical brief, in my view, reinforces the commitment to know what your case is about and where it is going.
Briefs often include photographs. It is essential that the copies that go onto the brief are in colour and good quality. Preferably they should be duplicate photographs rather than colour photocopies. Black and white photocopies of coloured photographs should never be put on a brief. Nor should poor quality colour reproductions be put in the brief.
Before the trial you should re-evaluate your brief structure. You may then create another brief in reduced form that includes only the documents that you have decided are needed to run the case in the court room at trial. A number of documents that were in the brief before trial may not be admissible documentary evidence or you may have decided you do not need to use or refer to them at trial.
Written advice will summarise and analyse the relevant aspects of the evidence and law. In a structured manner, it should address, wherever possible:
Use topic headings. They give the advice structure. The can include, for example, at the outset “Nature of Claim” and at the end “Summary of advice and recommendations”. Between the beginning and the end you should include topic headings and sub-headings.
The significance of the ultimate destination highlights the need for your advice to be in the form that is capable of being translated into closing submissions at trial. It does not matter that initially it may merely resemble a draft that contains tentative conclusions. You are creating a road map for yourself.
At the outset of the claim you are likely to have a limited amount of information. Your advice should not be confined to advice about what you have. You must think about, and try to articulate, other issues that might be relevant. This will enable you to formulate ideas for enquiries to obtain further information that will make those issues relevant or rule them out. As an obvious example, if you have material that is relevant to a liability question you obviously need, in addition, material about quantum.
Performing the task of identifying and listing categories of documents or evidence that might be relevant should lead you to form conclusions about steps to take along the pathway from claim to trial. Particular kinds of claims generate the same or similar categories of documents. You need to identify the patterns that emerge from your experience of cases. This will aid you to make decisions to look for relevant types of information that you do not have.
The written advice may be provided by a series of letters or memoranda. A substantial written advice might emerge in time and follow preliminary advice documents. The substantial form might be followed by a series of documents that contain updated advice.
A written opinion should be done periodically. An updated opinion will summarise the past position and conclusions, the present position, and what action if any is required for the future. The commitment to prepare periodic advice ensures that you continue to know where you are, and where you are going, with the claim. The periodic opinion is your ongoing road map. It keeps you on track. You keep yourself on track. It enables you to decide whether additional or improved evidence is required. It helps you to decide whether the claim should be settled or allowed to go to trial.
An important technique for summarising and simplifying evidence, so as to facilitate the process of analysis, is the preparation of what I call an “evidence chronology”. This is not a chronology of the type that is commonly required by a Court in litigation. It is a summary of the important aspects of the evidence. Although it is a summary, it set out the evidence in considerable detail.
The summary is in date order. It sets out information that is obtained from the relevant documents in a summary form about events that have occurred in the past. An event is something that has happened – something that a witness did, saw, heard, read or wrote.
Every event has these features:
The evidence chronology contains:
It is important, wherever possible, that the summary of the event is described by reference to human perception. This is important because one use of the evidence chronology is as an aid to preparing witness statements. Witnesses give evidence about clear recollection of past experience of events and not merely by description of outcomes. For example, if the relevant event was the creation of a contract a useful description of the event might be “individual X of company A contracted with individual Y of company B to …” rather than “a contract was made between company A and company B”. A better summary would be “At [place] individual X of company A said to individual Y of company B [words comprising offer]. In reply individual Y said [words comprising acceptance]”. An appropriate summary of the evidence increases the chance that work will not have to be re-done when witness statements are prepared.
The comment section enables you to record any pertinent thought you have when you read the document. Comments may include, for example, that a particular person should be asked to comment on the document, further enquiries should be made about evidence that may exist, or the legal significance of the document or the information in it. The advantage of the comment section is that any thoughts about a document (and irrespective of whether ultimately it proves to be an important comment or not) can be recorded and not lost. This may result in reduced double handling in the future by avoiding the need to re-read the document to retrieve or recall your earlier thought or comment. Your thoughts might benefit someone who in the future has to consider the evidence. They will not have the benefit of your memory but will have your record.
The witness section enables you to record (and again not lose the relevant information) your view about potential witnesses or potential cross examination. An evidence chronology may be used as an aid to preparing witness statements. Another potential use is preparation of cross examination.
The importance of putting a document identifier (such as the document discovery number and party, or trial bundle number) in the evidence chronology is that it facilitates locating the document. This is a vital requirement is cases with many documents.
The evidence summary can be prepared document by document and later sorted into time order. This can be done easily using a table in Word or spreadsheet software. The process of preparing the evidence chronology enables you to summarise documents in whatever order they are presented to you and you can later use the capability of a computer and software to organise the material into a comprehensible time sequence.
The evidence summary makes the information in the documents more comprehensible by reducing the quantity of the information that you have to digest and putting it in time order. Every evidence summary tells a story, and stories are easier to understand if the relevant events are told in the order in which they happened. An evidence chronology often reveals issues and questions that were not apparent to you in the past. In my experience it is an essential document for any major claim that will be going to trial.
An evidence chronology facilitates preparation for trial by:
This is a topic for a seminar. A paper can be found at my web site at http://www.hancy.net/resources/drafting/. I recommend that in every case statements for use at trial are prepared by lawyers.
This is a topic for another day and another seminar. I recommend that you explore how you can use computer technology to facilitate the tasks that must be performed on the journey from commencement of claim to trial.
Lead up to trial
Before trial the following are essential documents:
Advice on evidence is essential to ensure that bases are covered and you know what is admitted, whether your evidence is admissible, and what can and will be proved by the evidence.
The written opinion should address relevant liability and quantum issues, pertinent factual and legal conclusions, and likely or potential outcomes from a trial.
Opening submissions should spring from the most comprehensive written opinion and any later updates. The comprehensive written opinion forms the foundation for opening submissions. As the trial progresses, day by day, the opening submissions should be modified into draft closing submissions. The closing submissions should largely resemble the opening submissions, and the opening submissions in turn should largely resemble the comprehensive written opinion that was given some time before trial.
Ideally, the bulk of the closing address should have been written months before the commencement of the trial. If you achieve that result it will show that you knew where the claim was going well in advance of trial, during the trial and at the conclusion of the trial.
Settling the claim
If the processes I have suggested are followed you should be better placed to understand what is likely to happen if the claim is not resolved by agreement, and you must proceed to trial. Knowledge of potential outcomes and their value and probabilities of different potential outcomes enables you to formulate views on what is or would not be an appropriate settlement.
You should have improved prospects of resolving a claim sooner and on satisfactory terms if you are better informed about the facts and the law and likely legal consequences.
In the mediation process you will have the opportunity to address issues that are relevant to resolution of the claim but are not relevant to, and will not be resolved by, the trial process. A trial will only resolve questions of liability, quantum and the like.
You should bear this in mind and ensure that you inform yourself on other issues that may affect (amount to obstacles to) resolution of the claim. For example, in a Fatal Accidents Act claim the family of the deceased may be experiencing feelings of anger. You must formulate a strategy to deal with this before the mediation or pre-trial conference takes place. You need to develop a strategy because an unresolved issue may prove to be an obstacle to settlement.
Other issues that may be relevant to settlement, but are not likely to be resolved by a trial, include the health of a party, stress caused by litigation, a party’s reputation, or the value of an ongoing relationship between the parties.
From day one think about what you, or counsel, will be saying to the court at trial.
Know your case.
Summarise, organise and analyse your knowledge.
Prepare a structured brief.
Summarise and structure your thoughts and put them in writing.
Keep the brief and your written advice under ongoing review and updated.
Your brief and evidence chronology should assist you to prepare written advice. That written advice should be the foundation for written opening submissions. Opening submissions will contain the substantial content of the written closing submissions.
Make sure you prepare your witness statements correctly and take advantage of computer technology
23 September 2009