In a litigation context winning should not always be the default position. By taking a commercial approach to a matter, a desired outcome for both parties can still be achieved without an unnecessary escalation of legal costs.
Too often lawyers hide behind threatening emails simply to avoid confrontation, rather than picking up the phone to narrow issues and attempt to settle. Furthermore, lawyers should not just be a mouthpiece for their clients, and always seek to adopt a professional approach to resolution rather than blindly follow instructions with no value-add.
In the current climate where hearing dates are adjourned for lengthy periods, now is the time to negotiate not bluster.
Time and again I review files containing emails sent to opposing insurers or lawyers. The emails are well worded and to the point but start to lack credibility when it’s the third one sent over several weeks containing the same content.
It’s prudent to advise the client by email that a response to an offer is being sought but multiple emails cause unnecessary delays when a phone call could elicit a faster response. Less is more. Emails should be relatively short and succinct – unless the matter is complicated and a letter format should then be adopted. To help things along, making a follow-up call within 5 to 7 days of the email is a process worth considering.
I have seen many scenarios where there is clear tension in an email exchange. I’ve also seen emails from brokers where it is clear they are bothered about delays in file movement or concerned why certain documents are required from their client. This is a great time to pick up the phone and clear the air. A brief telephone call can better explain what is required and gives you a chance to get the broker on side. Limit the hostiles you need to contend with!
While on the topic of hostilities, I’ve noticed that emails can be used to hide behind; communications can often be aggressive and the tone and/or intent can easily be misinterpreted. A simple call will quickly and easily diffuse a difficult situation and clear up any misunderstanding.
Using the telephone to argue your case against someone with opposing views – or to get them onside to work with you – is a great skill for young lawyers to learn. Understanding how to accurately record the details of the conversation in a follow-up email is equally important to eliminate doubt in the future.
Ultimately, the objective is to move the file along constructively towards a positive outcome for the client in a timely manner. In a world where electronic communications is increasingly on the rise let’s make a difference – pick up the phone.
Questions? Contact Mark Da Silva, Principal Lawyer