Giving advice

Have you got to the point where you can give advice (in a litigation context) without worrying that maybe your research of the law missed a key legal provision, or that your assessment of the evidence was reasonable?

In routine cases where there's no law, I don't worry that much anymore, although I do go back and forward on making judgments about what to do. But if the law is unfamiliar, then I'm always thinking 'Did I find all the relevant legal provisions' (which might be across several different Acts including now repealed legislation) and key cases. 

Does this ever go away? I'm 5 years into a brand new area of law but in my late thirties. 

Please don't be to mean!

short answer - no. 

But you get to a point where you don’t obsess about the potential consequences and kind of learn to accept them. 

Not sure it ever goes completely but it keeps reducing.  I’ve seen QCs change their mind on the outcome just before trial so you’d be in esteemed company of you did, albeit a touch neggy.

You always have to bear in mind it’s a bit of a moving feast as disclosure, witness statements, expert evidence comes in so you can caveat the advice around that.

But the worry that you’ve fucked it is definitely part of the stress of litigating.

 

I never worry about my perception of the evidence. I worry a bit about getting the law wrong. That is why you have colleagues and instruct barristers. You won’t all know everything, but bouncing the ideas around should help you to cover all areas. Google also helps.

Thanks. When I talk with colleagues, nothing they say or do gives me the impression that the legal problems ahead of them are anything but solvable. Like a quadratic equation - you might not know the answer, but it is just a matter of processing the materials in a 'set' way to get to the final outcome. The challenge for them seems to be 'I know what to do, it's just that I need time to develop the work product'. Whereas I'm often thinking 'Hmm, I'm not sure if I've found all of the law' or 'Have I even understood the problem that I'm being asked to solve'?

In my 5 years, I don't think I've made any (major) errors, but progressing matters in the law mostly feels like wading through treacle, which seems to be in marked contrast to my colleagues.

I don't think we would ever instruct barristers because we didn't know a) what to do or b) the law. We instruct them for their judgment on which way a court will likely rule on something or if they're going to be in court. 

I do tend to avoid bouncing things of colleagues because a) my colleagues don't seem that approachable and b) I don't want to seem like a bother to them. I've been told by my manager it's fine, but an internal voice tells me that they'll judge me as incompetent if I do this. 

That doesn’t sound like a good work environment. I ask my senior colleagues absolutely anything I’m unsure about, legally related or not, from something as trivial as “How should I address this person?” 

You’d be surprised that some solicitors will stuff a ton of documents into a bundle and instruct counsel in terms of, “Here are the documents. Tell us the answers and what to do next.”

Lex that does sound like a bad environment.  It’s really important to be able to run things past people, a second perspective is a vital part of learning.

Those swanning round your department not being bothered by it might either be too stupid to know they’re at risk (particularly if there’s no culture of seeking input from others) or trying to give the impression they know what they’re doing.

Also, your colleagues have to be wrong if they believe that the answer can always be worked out from the materials. This is litigation. Won’t your opponents do the same thing? Occasionally in litigation you do get a Nash equilibrium where both sides are forced to rationally adopt opposing positions, but that is rare. Most litigation is zero sum, and from the very first letter, one side is doing it badly. If you have 30+ cases on the go at any point, you will be in the wrong on a few of them. The task is to discover which ones that is true of as quickly as possible and get out with minimum damage.

I reckon this industry would be so much less aggressive if solicitors that practise litigation were forced to resign if they lose, say, three trials in their career. You would have far fewer solicitors willing to take on crappy claims.

"I reckon this industry would be so much less aggressive if solicitors that practise litigation were forced to resign if they lose, say, three trials in their career. You would have far fewer solicitors willing to take on crappy claims"

 

thats absurd 

That doesn’t work O because it’s the client’s case at the end of the day.  You can’t polish a turd, and if they want to go to trial that’s their right.  Your duty is only to advise them and represent them to the requisite standard.

Yes, I didn’t really think! (And I am a litigator, really!)

But I do often reflect that in contentious legal work where you and your opponent disagree (assuming there is only one opponent) the subjective probability that you are wrong is relatively high. And quite often you see litigators get totally wrapped up in their cases. They become more obsessed than their own clients. It is common to see teams of lawyers create echo chambers for themselves. Everything their opponent does is stupid or incompetent. I often reflect on this whenever I feel very confident about my opponents incompetence. 

 

The point i was trying to make to begin with is that most litigators are acting not jus sub-optimally, but far far far from sub-optimally. So you shouldn’t get too concerned about making mistakes.

Wtf do u mean, 'in the wrong'? You assert your case and get the best outcome for your client

Some clients litigate for commercial/strategic reasons unrelated to the specific case

Some might do that, but most don’t. Most are motivated by paying the minimum, which, if your position is wrong, usually means conceding cheaply.

"I ask my senior colleagues absolutely anything I’m unsure about, legally related or not, from something as trivial as “How should I address this person?”"

 

Thanks for all your input, especially sentiments like this ^^. 

I think a lot of this is in my head. If I ask for 'help', then in my head there's a loud voice saying 'Can't you do it yourself?'/'You're always asking for help' whereas the helper who loses less than 5 minutes of their day probably thinks nothing of it. 

Lately I've been diagnosed with cPTSD (which is basically lots of traumatic events piled on top of each other), so I suspect this might be one of the causes of being a bit of a worrier.

Sounds like you need to get hold of some better kwality work OD