16 July 2020 | Comment | Article by Mark Lane
When lockdown began, I must admit, I did worry about the effect it would have on our clinical negligence cases.
We had a number of them going to trial and also a series of meetings scheduled between parties to explore whether a settlement could be achieved to avoid trial.
Settlement meetings are done face-to-face over the course of many hours - if not a whole day - with multiple negotiations taking place between the parties.
Would these be able to go ahead as planned, I wondered? And, if they did go ahead, would they be productive - or would the outcome be compromised?
We knew we needed to quickly adapt our practices to progress our current cases as much as we could. Our biggest challenge was undertaking work that would normally be done face-to-face – and what we thought was too difficult, or disadvantageous, to do remotely.
The solution was to use technology where the parties could discuss matters remotely – both with the defendant and separately with my client and barrister.
We road-tested our approach with my first case.
In order to make the most of the meeting, I made sure there was plenty of planning before the remote meeting took place. I made sure my client had full and comprehensive advice about settlement parameters beforehand and that this had been agreed between me and the barrister.
This was much more comprehensive than had been done previously, as a settlement meeting in person allows much easier discussion and provision of advice in situ.
It was also important that my client had all relevant documentation to hand and the opportunity to raise any queries in good time before the meeting - rather than discuss them on the day. Such queries might be more difficult to deal with in short notice remotely and the client might not have the opportunity to digest the advice given.
In short, it was of utmost importance to me that my client had a full understanding of matters, they were comfortable with raising any issues they thought were relevant and of the implications of what was happening at the meeting beforehand.
It was important to ensure that all parties had contact telephone numbers and would be available for contact throughout the day. This included ensuring mobile phones were fully charged and in a place with good phone reception.
All of these preparations meant that there were no substantive delays in progressing the negotiations, and therefore no drop in momentum.
Evolving our approach
In our more straightforward cases, it’s been possible to simply have a telephone conference call with the client and barrister to discuss matters and to then have a separate telephone conference call with the defendant party. This can be repeated on multiple occasions throughout the day. It has helped to have the defendant’s contact email so a time can be arranged for further exchanges to ensure everyone has full instructions before proceeding further with negotiations.
In more complex matters, it’s been necessary to have secure video conferencing facilities where discussions can take place between the lawyers and the client. In one instance, we’ve had 4 parties on the video call. To facilitate this, we set up a video conference room for the day that allowed people to dial into when needed. In this instance, it helped to set up a WhatsApp group so everyone could be notified when they needed to join the video conference throughout the day.
In all cases, our negotiations progressed surprisingly smoothly and probably at a quicker pace than if they had been done face-to-face.
The results of all negotiations have been good for our clients and within the same parameters that were originally in place before lockdown – so the outcomes haven’t been adversely affected by negotiations taking place remotely. Indeed, there may be a call for such meetings to take place remotely in the future post COVID19 - especially with more straightforward matters because it avoids additional time and cost associated with travelling to a particular venue.
I didn’t think I’d say it but, perhaps, lockdown will change our working practices in the longer term.