Friday, 21 November 2014

The Second Opinion


Daniel Soames was in his Chambers when he received a telephone call from a woman whose business provides him with some of his office supplies.

Brenda said, “I am involved in some litigation where I am seeking a little short of $6,000 and I would like a second opinion as to whether the case was viable.”

Daniel said, “I will happily look at the matter for you. Can you provide me with all the relevant material from that litigation.”

Brenda said, “That will be no trouble. I will courier the material to you this afternoon.”

When the material arrived it took Daniel just under an hour to read and come to terms with it. Once he had done so he had a chat with a colleague in Chambers as to what he made of the facts as told to him by Daniel.  Both barristers agreed that the litigation was in two (2) parts and the legal proceedings drawn by the solicitors were defective in not making the dichotomy in respect of those two (2) parts to the litigation.  The trial was listed to proceed in about two and a half (2 ½) weeks time and the small amount of money the subject of litigation meant it was really not commercially viable to redraw those legal proceedings. In pragmatic terms, it was really best to just proceed with the matter in its current form and endeavour to perhaps make an application to correct any errors at the trial.

Armed with that appreciation of the case Daniel telephoned Brenda.

Daniel: “I have read the material and believe I understand the issues involved in the litigation.  In my view it would be prudent for you and your solicitor to attend my Chambers and have a conference with me to discuss the litigation in some detail.

Brenda replied, “I agree. I will contact the solicitor to see if that conference could be arranged and occur by the end of the week.”

Daniel: “I am happy to leave you to make those arrangements. I expect I will hear from you shortly.”

Within half an hour Brenda had again telephoned Daniel to tell him that the conference could occur at his Chambers in two days time at 3:00 pm, subject to his availability.

Daniel said, “Those arrangements suited me fine and I will note my calendar accordingly.”

Conference
Brenda and her solicitor arrived at the Chambers of Daniel shortly before 3:00 pm and the conference proceeded without delay.

Daniel said, “As I understand the matter, the litigation was effectively in two (2) parts, the major part for just over $5000 and the minor part for just over $500. There was then also the issue of costs.  The matter had already endured an application for summary judgement by Brenda, which was unsuccessful. It seems me that a significant consideration for the Court during that application for summary judgement was the way the Court documents had been drafted.  In articulating the claim of Brenda the documents did not make the dichotomy between the two (2) parts to her claim.

“On the material supplied to me, it seems that the Defendant really had no defence to the major part of the claim and the only reason she ought not be successful was that the Court was not minded to give her the justice she sought. The lesser amount of the litigation was less certain in terms of the ability of Brenda to obtain judgement in her favour. There were certainly some arguments the Defendant could raise in response to her claim and they may well be found to be valid.  Nevertheless the Court documents being drafted the way they were, it appeared that the defence of the Defendant in respect of that lesser claim may well be a defence to the entire claim, so no summary judgement could be awarded at that time.”

“There were good reasons to think that the trial on the larger amount would largely mirror what Daniel expected would have been discussed during the summary judgement application, because nothing had really changed in that regard and the real question continued to be whether the Court was minded to give judgement in respect of Brenda.”

“Interestingly the part of the litigation over which the controversy would be the greatest was the lesser amount and it hardly seemed worth spending the money it was likely to cost in pursuing such a small amount.”

Daniel asked, “Brenda, how much have you spent on the litigation thus far?”

Brenda replied, “Including the cost of the present conference, $3,000.00.”

Daniel: “If the matter were to proceed to trial, you could expect to spend that much again and, for the reasons that have already been outlined, there is no guarantee you would be successful. The outcome in those circumstances may very well be you would spend $6,000.00, effectively speculating on being awarded a judgement in the sum of $6,000.00 by the Court. Does that seem to make any commercial sense to you?”

Brenda: “No, it did not”.

Daniel noticed that during this conversation the solicitor was sitting and listening, but not actively participating in the conversation. There was very little he could say to change the course of the conference and the conversation, Daniel thought.  It was his inept drafting that put billable hours and his ego ahead of the interests of the client and that led to the situation that was now confronting this litigation and therefore Brenda.

Daniel continued, “In the circumstances, Brenda, now might be a good time for you to consider cutting your losses in respect of this litigation and endeavouring to move on with your life.  Perhaps through your solicitors you might contact the Defendant and offer to settle the litigation by discontinuing it and each side being responsible for their own costs incurred thus far?”

Brenda said, “That advice makes sense. It is an approach I will to seriously consider.”

The solicitor spoke for the first time, also agreeing there was some sense to adopting that approach.

Spotlight On The Solicitor
Having arrived at that position Daniel thought how lucky Brenda was to have contacted him and asked him to provide a second opinion on her litigation, an opinion different to and independent from the advice she was getting from her solicitors.  Daniel also thought it was typical of so many solicitors to have taken the best part of $3,000 in legal fees from the client in respect of some litigation, hardly advanced her case at all, perhaps even hurt it, and want the client to continue to retain them and fund that obviously ineptly prosecuted litigation.

Given his good business relationship with Brenda, it was taking Daniel some effort to not make his feelings in that regard public, but rather keep them to himself.  However several times during the conference he looked at and thought of the solicitor and said to himself, you are not entitled to any fees in respect of this, because your work has hampered it, rather than helped it.

Brenda then said she needed to go to the toilet and she asked for directions as to the location of the ladies toilets.

Daniel gave her those directions and the conference was adjourned to accommodate Brenda.

Whilst she was attending to nature there was no conversation about the litigation between Daniel and the solicitor. There was some general conversation about their respective practices other than that litigation and that conversation merely served to confirm the view Daniel had of the solicitor, his ability and his contribution to this case.

Conference Resumed
Upon her return to the conference Brenda said, “I have considered your advice about trying to settle the litigation by discontinuing it and each side bearing their own costs. Seems now is an appropriate time to cut my losses and move on with my life, so that is the approach I wish to take in respect of this litigation.”

Daniel suggested that the solicitor then write formally to the Defendant and make an offer of settlement in those terms.  Both Brenda and the solicitor were happy with that approach.  There was then some discussion as to what might be the contents of that letter, notes of which were taken by the solicitor, and at the conclusion of that discussion the conference ended.

Brenda and the solicitor then returned to their respective places of work.

Three Days Later
Three (3) days later Daniel received a telephone call from Brenda about the conference and the litigation.  She was a very happy woman.

Brenda said, “I have been contacted by the solicitors, both on the telephone and in writing, informing me that a settlement had been reached with the Defendant in the terms we proposed.”

“Plus I have more good news.  When the letter from my solicitors arrived informing me of the settlement I was also pleasantly surprised to read that, as the matter had proceeded in the way it did, the firm felt it was not appropriate to charge their normal fees for the work they had done in respect of this matter, but rather a fee of $500.00 would be all they would seek from me.  They enclosed a cheque for the balance of the money I had paid to them up to that point, less the cost of the fees for you, Daniel, for the conference.”

“I was very happy to have involved you in the matter, Daniel. Thank you for all your assistance.”

Daniel said, “It was no trouble, a pleasure in fact. I am happy you got an outcome to her satisfaction.”

After the telephone conversation with Brenda was over Daniel reflected upon her situation. He was happy for both her and himself that he was apparently able to assist the solicitors in arriving at the correct decision in respect of Brenda and her litigation.  He did not expect to get any further work from that firm of solicitors, although stranger things have been known to happen in the law.  At least he was able to put his mind skills to good use on this occasion and for a very deserving recipient.

Lunch with Morris
Shortly after telephone conversation ended Daniel saw one of his Chambers colleagues Morris and shared with him the developments in relation to the Brenda litigation.  Both of them were happy with the outcome.  They took their glee with them as they had lunch together discussing the Brenda case at some length, as well as a few other tasty morsels they found amusing.

During that lunch Daniel noticed Derek, the solicitor colleague with whom he had a conversation a few days earlier, walked past and say hello to him. What was surprising was that Derek then came over to him.

Derek said briefly, “I have a matter I would like to discuss with you with a view to briefing you in it. Are you available for me to come and see you about it this afternoon?”

A more than a little surprised Daniel said “Yes, I am available all afternoon. Is 2:00 pm convenient for you?”

Derek said “Yes, it was”.

Daniel said “I will see you my Chambers at 2:00 pm”.

Derek then left Daniel and Morris to their lunch and went on his way.

Daniel then said to Morris, “Who can understand the reasons that motivate a solicitor to brief a barrister?”.

Morris said “The sun will stop rising in the East and setting in the West before that enlightenment arrives.”

They then continued their lunch and after about half an hour returned to Chambers.