It seems to be accepted as a matter of course that Plaintiff’s and Defendant’s will or must always clash. That each is about squeezing the other for every last drop. But is that really the case? If so, how can we improve? I comment on this from the perspective of a plaintiff personal injury lawyer.Being on opposing sides of a personal injury claim will always involve some disagreement.
Whether it is about credibility, medical evidence, liability, damages being claimed, whether the defendant should fund treatment and rehabilitation etc.
The Object Of A Personal Injury Claim
In the heat of “battle” we can lose our cool and clash with our opposite number. I have one problem though, I don’t accept that this is necessary or reasonable. A personal injury claim is not a battle. The days of commencing Court proceedings without any attempt at negotiations are long gone. We are now required to undertake a number of steps before our clients can start Court proceedings. In most jurisdictions this includes disclosure of relevant material so that “all cards are on the table”. Further, in most jurisdictions, the objects of the particular personal injury regimes includes encouraging an expeditious and cost effective resolution.
Neither on a personal level, nor from the perspective of legal requirements, do I feel that we should be doing “battle”. We might still have an adversarial system in Australia, but the Australian Solicitors Conduct Rules make clear our ethical obligations to deal fairly, honestly and courteously with other lawyers.
In my earlier years I clashed quite frequently with defendant lawyers (some may be reading this post). I felt like I had something to prove, like my role was to ride into battle for my client. Over the years, thankfully, I have changed my attitude and I feel I have a good working relationship with many colleagues on the defendant side. Such a relationship is very advantageous, not only to keeping our stress levels down by avoiding ridiculous arguments, but also to the benefit of our respective clients.
Significant Benefits To The Client
Potential storms can be dealt with courteously and quickly before they arise. Or if a problem does arise, it is much easier to pick up the phone and call the other lawyer, have a chat and resolve the matter, without argument and without threats of Court. That is what a good, honest and courteous working relationship with your opposite number can achieve. The benefit to the client – not wasting time and legal costs on unnecessary or petty arguments.
If ultimately there is a genuine disagreement and a Judge is needed to adjudicate, it is done so only after genuine attempts to resolve the matter and not waste Court or client resources. Whilst we may not always agree among each other in the legal profession, there is no reason why we cannot stop, breath, and put that swell of frustration to one side.
Instead of getting frustrated and clashing with our colleagues on the other side, why not simply accept that minds on the issue cannot meet, and look at how the matter can progress to the next step. Even if that next step is the necessity to make an Application or commence proceedings.
I am thankful for the respectful dealings I regularly have with defendant lawyers. We all have busy practices, stressful days and a personal life with all manner of things going on. If courteous, respectful and honest dealings with my colleagues in the profession makes my day easier and makes the flow of my client’s claims smoother, then I think we owe it to each other and our clients to behave so.