March 2017


Survival in the legal jungle

By Kate Tilley, Editor, Resolve

Don't be a lone wolf.

That was a key message from Barry.Nilsson Adelaide partner Bronwyn Ackland in a presentation geared to AILA Young Professionals, It's a jungle out there – surviving difficult opponents and cruising through court appearances.

She said the lone wolf developed into the angry wolf. But YPs had to understand back up was always available and they should seek help from their partner or, if they were unavailable, a more senior colleague.

She told Resolve there had been a dramatic change in attitude in law firms. "Everyone now understands we work together as a team."

Her presentation began with a fact scenario, to which YPs had to choose the correct response.

At 4pm on a Friday, you get a phone call from a senior associate from the law firm on a file where you have a difficult client you can't get hold of ever, let alone for urgent instructions. There is a hearing on Monday. The senior associate is yelling that she is serving an application today and wants you to produce the client's medical records immediately.

You have the documents, but haven't read them and the client hasn't agreed to allow you to release them. You can't get hold of him. You think he's on a yacht in the South Pacific but you can't tell the other solicitor that because it's a personal injury claim and you're pretty sure the GP's notes say your client has told the doctor he used to sail but can't now because of his injury, but you are just not sure. The partner has left for the day. What do you do?

The options were:

• Email the notes straight away to your opponent. You've got them and you don't like being yelled at and you don't like appearing in court especially when you're not sure what to say.

• Tell your opponent you will consider the application when it is served and take instructions then and before responding to her.

• Go to the pub, call in sick on Monday and hope someone else deals with it.

Ms Ackland said the second option was the preferred resolution, but advised YPs to always seek advice from someone more senior within their firm or, if they were in a very small firm, a mentor from among the legal fraternity.

She told Resolve a common mistake for YPs was to agree to something to avoid being embarrassed because they did not know the answer. For example, at a directions hearing a YP agreed to orders being made, despite an application not having been served, but they didn't know that. Ms Ackland said the correct response would have been to say "I don't have instructions", request an adjournment and make a phone call to clarify.

She recalled her first settlement conference when a barrister on the other side was "getting aggressive and pushing me around". The partner with her intervened, saying that was inappropriate behaviour.

Ms Ackland advised YPs to keep calm and say: "I'm not going to agree to something just because you are threatening me."

"If you are a junior it's not that easy, but courteously end the call and chat to your partner about it." A return call on speaker phone with a partner in the room often saw attitudes change, she said.

While dealing with difficult people was not common, YPs had to expect it. "For some people, it's their natural behaviour to get what they want," she said. But in general practitioners were "respectful of each other and mindful if someone doesn't have the same experience".

Some practitioners were prepared to "go that bit extra" to assist a less-experienced lawyer, "but not to the point of being detrimental to their client", Ms Ackland said.

Being involved in AILA activities was beneficial because "you get to know people better [who may be on an opposing side] and that can help you get through difficult situations".

The first court experience can be scary. Ms Ackland recalled hers clearly, despite the passage of 16 years. "When the magistrate walks in you can become speechless all of a sudden, there's a wave of fear, you forget what you have been taught. I was constantly seeking acknowledgement from the senior associate that I was doing the right thing."

Even today, "it can be nerve wracking if you have to ask for an order that's controversial".

A tip for YPs was not to call female judges "M'am". "It's safer to call them all Your Honour," she said.

She recalled an incident – albeit a decade ago – when a practitioner forgot their robes. The judge repeatedly said "I can't hear you" as the practitioner tried to argue his case.

Ms Ackland said under the Australian solicitors' conduct rules, fundamental ethical duties were to:

• Act in the client's best interests
• Be honest and courteous
• Deliver legal services competently, diligently and promptly.

They also dictate that a solicitor must not take unfair advantage of another solicitor or other person's obvious error if, to do so, would obtain for a client a benefit which has no supportable foundation in law or fact.

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Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.