Things You Must Not Do In the Initial Years of Litigation

By : Arya Mishra

To practice law and represent clients is fraught with risks. In order to resolve the problems of
people, much time and money is invested and the effects can become costly if mistakes are made.
But which practice area is the riskiest? Which lawyers are mostly sued by for malpractice? The
answer is “litigators” or more specifically, “litigators which represents plaintiffs in personal injury
matters.” “Litigation is an art which if learnt can make a person an artist”

The term litigation is used to describe proceedings initiated between two opposing parties to
enforce or defend a legal right. It is settled by agreement between the parties, but may also be
decided and heard by a Judge in the court or by the Jury. Contrary to a popular belief, litigation is
simply not another name of lawsuit. Litigation includes many activities before and after a lawsuit
to enforce a legal right. Pre suit negotiations, arbitrations, facilitations and appeals are also the part
of the litigation process in addition to the actual law suit.

Having a claim of malpractice does not always mean that the attorney who is a responsible
person made mistakes in the judgment. But if simply seen in the world of litigation, more
opportunities are there for the things to go wrong. During the examination of the list of mistakes
and errors that are open alleged against litigators usually involve an indisputable error whose
matter can be corrected a little bit or cannot be corrected. Errors which occur frequently are
missing a statute of limitations deadline or failing to timely mean a proper party in an initial
pleading. These errors can be costly if the litigants lessen the value of the case.

Common mistakes which should be avoided by the litigators

Missing court deadlines: The most common error in litigation is missing court deadlines. To
prevent this one should make sure that he must have a calendar and docket control system to
prevent calendar errors. The best tool which lawyers can use to avoid calendar mistakes is case
management software. In this software the docket control feature will alert the attorney to check
the file regularly, and provide multiple notices when a deadline is approaching.

Communicating with clients: The other most common cause of malpractice claims is poor client
communication. The most common ethics complaints received by state bars and disciplinary
boards are a lawyer’s failure to return phone calls. It is also one of the things that frustrate the
clients the most. To avoid the problem of communication a law firm should have standard policies
in place for returning and handling phone calls. If a lawyer is unavailable for a long period of
time, he can ask his staff to assist his clients and to receive his calls when he is unavailable. This
is perhaps one of the best ways to decrease the problem of losing your clients due to lack of
communication.
Informality: when a litigant is representing his or her family member, a friend, or someone with
whom he or she has a long standing relationship to be more casual. When this happens the office
procedures formalities and rules that are to be followed or applied to handle the matter of client
are often not maintained. This can be harmful to both the client and the lawyer. If an attorney wants
to represent his or her family member he can try to maintain formal case handling procedures that
he follows with other clients such as meeting them in his office to discuss the matter rather than to
discuss it in a family gathering. By maintaining this formal client handling process, an attorney
can overcome the problem of informality. It would be a better idea to provide counseling to the
friend or family member if you think that there is need to do this. By doing this an attorney can
successfully takeover the handling of the matter.

Associating with additional counsel: The clients who are not fully aware about the fact that their
lawyers are also providing counseling to other client at the same time on the same matter will feel
disappointed or becomes upset. Moreover if they fell that the fees lawyer is demanding is
unreasonable then there is chance that they will challenge the fee and bring the claims against the
lawyer. It is important for a lawyer to remember that he has certain duties towards his clients
which are mentioned in section 2, part 6 of the bar council of India rules1 and he has to fulfill them.

1
Rules on the professional standards that an advocate needs to maintain are mentioned in
Chapter II, Part VI of the BCI Rules. These rules have been placed there under section 49(1) (c) of the
Advocates Act, 1961. Some of the basic and crucial duties are summed up below:-

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT-

• Bound to accept briefs.
• Not appear in matters where he himself is a witness.
• Full disclosure to the client.
• Uphold interest of the client.
• Not suppress material or evidence.
• Not disclose the communications between the client and himself.
• An advocate should not be a party to stir up or instigate litigation.
• An advocate should not act on the instructions of any person other than his client or the client's
authorized agent.
• Not charge depending on the success of matters.
• Not bid, purchase or transfer property arising from legal proceeding.
• Not adjust fees against personal liability.
• An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
• Keep proper accounts.
• Adjust fees after termination of proceedings.
• Not appear for opposite parties.
Conclusion

Despite the great complexities of modern day litigation, the best defense against the most common
claims is relatively straightforward. The most common claims against the litigators for their
mistakes involve missed deadlines and failure to communicate properly with their clients. Other
problem includes problem of drafting and this is a thing which no one can teaches a person that
how to draft applications. To deal with the issue of drafting one can do a course for learning the
art of drafting. In addition, a litigator must have to stay updated with latest law news and laws. A
litigator must have to understand the laws from the perspective of his client. This thing cannot be
taught by anyone. The easiest way to understand this is to keep reading blogs so that one can
always remain updated with the latest laws.