CHOOSING CIVIL LITIGATION COUNSEL

Your Lawyer's Communications

Consider that there are three important people to whom your lawyer has to communicate on your behalf; you, other counsel, and the court or tribunal.

You
Arguably, your lawyer's communications with you are more important than any others. While the lawyer represents the client to other counsel and the court or tribunal, it is the client's rights that are in issue and the client that bears both the consequences of a win or loss, as well as (in most cases) the financial cost of what the lawyer is doing. When you, as a client are called upon to make decisions about your law suit, you should have the best possible understanding of your options and the potential consequences. You can't do that unless you are getting good communication from your counsel.

How frequently and in how much detail you hear from your lawyer can vary a great deal from lawyer to lawyer, and from client to client. As a client, you have to decide what level of communication will make you comfortable. Some institutional clients, who are very experienced litigants and have a well established protocol may want to hear from their lawyer only at certain times and in connection with certain events. Others may want to have detailed involvement in every aspect of the case, all along the way.

What is most important is that you have a comfortable working relationship with your lawyer that you can have confidence in. You should discuss at the time you consider retaining any lawyer what the lawyer's practices are regarding communication with clients, so you know what to expect, and can be sure you are comfortable with it.

Other Counsel
Your lawyer's communications with other counsel are also very important, but for different reasons. First, in many cases the law suit will settle before trial. How long it takes to settle, and how advantageous the settlement is, depends upon your lawyer's skill in persuading opposing counsel of the strength of your position, and upon your lawyer's ability to work with opposing counsel to recognize a common interest in settlement where it exists - ideally sooner rather than later, with less attendant legal fees.

Second, even where cases don't settle, how long it takes to get them resolved and how much it costs to do it are very often a function of how effective your lawyer is in dealing with other lawyers, in the context of the procedural requirements of the case. While in theory lawyers advocate for their clients, and do so without regard to their personal interests or likes and dislikes of other counsel, in practice a case can become much more protracted and expensive than it needs to be when lawyers begin to focus on each other instead of the case. Typically, lawyers who respect each other and also act in their clients' interests can get a case to its conclusion much faster and more cost effectively.

At the same time, you have to recognize that there are occasions where the lawyer opposed to your lawyer will not take a collaborative approach to getting the case to a resolution quickly and inexpensively. Not all lawyers are pleasant or co-operative, and some will attempt to bully others in any way they can. Your lawyer has to be able to deal with that, when confronted with it, to ensure that you are not taken advantage of.

Lawyers are (within the limits of appropriate professional practice) ultimately governed in the management of a case by the instructions of their clients. How well they put your instructions into effect depends a lot on how they relate to other counsel. You need to know your counsel's approach.

Courts and Tribunals
Your lawyer's communications to the court or tribunal are critical to the outcome of any case that has to be heard and decided on its merits. Decisions are supposed to be made on the merits of the evidence presented and the law. Your lawyer's success in presenting the evidence and the law depends in part on how seriously your lawyer is taken when addressing the court or tribunal. Counsel who are known and respected as being well prepared, accurate, and honourable in their conduct are likely to be given serious attention when they speak. Occasionally, a litigation lawyer will face an aggressive and/or skeptical judge, and that becomes a time when standing one's ground - in an appropriate and respectful way - can make the difference. Knowing how and when to do that is a function of your lawyer's skill and experience.

Lloyd's view: In most cases your lawyer should be someone who communicates with you on an ongoing basis whenever there are developments in your case, and who explains those developments to you in a comprehensible way, so that you can make intelligent and informed decisions. Your lawyer should also be someone who is capable of co-operative and professional interaction with opposing lawyers - but able to stand up and respond effectively to those who may be less co-operative and professional in return. A lawyer with a good reputation as a fair and competent counsel in the courtroom will be given due respect when addressing a court or tribunal. Establishing effective communications with your counsel, and having counsel who communicates effectively with others is an important part of intelligent litigating.

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