PI negotiation

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PI negotiation transaction feedback
Charles Hennessy Paul Maharg
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presentation

• statistics legal writing (PM)
• (some of) what you and we have learned (PM)
• feedback on aspects of negotiation and
  communications (CH)
• your feedback to us

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PI project assessment criteria

• We required from each firm a body of evidence
  that proves competence in the following areas
• File organisation presentation
• factual research from information sources in
  the virtual community)
• professional legal research using WestLaw
  paperworld sources
• Ethical communications focusing on
  correspondence optional recorded f2f meetings
• formation performance of negotiation strategy
  eg in meeting minutes, communications within the
  firm, etc, There should be evidence of forming a
  strategy, and that your strategy represents your
  clients aims.

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07-08 number of letters sent
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07-08 settlement amounts
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07-08 number of letters
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client update letter/report

• Should
• Be written to a specific audience, in terms of
  word choice, grammar, syntax, level of detail
• Contain clear, simple, direct ideas
• Be structured using sections, headings, bullets,
  etc
• Make it easy for the reader to find the
  information s/he is interested in knowing

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example 1 (to claimant)

• Liability
• Your claim for personal injury belongs to a
  branch of the law known in Scotland as Delict,
  which is concerned with compensation for loss
  caused by wrongful action. It may also be
  possible to frame a contractual action based on
  the contract between you and your employer,
  however the majority of cases involving an
  accident at work proceed on a delictual basis,
  and this is the route we believe should be taken.

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example 2 managing client (claimant)
expectations...

• Estimated amount of claim
• Assuming unchallenged success, the total of the
  estimated claim is 45,370.90. This figure
  includes
• bullet point list of heads of damages
• We do not expect to secure this amount, it is
  merely a starting point for you. It is expected
  that through the process of negotiation a more
  realistic figure will be arrived at. Whether you
  accept that figure is entirely your decision, and
  should you wish to go to court that is also your
  prerogative.

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legal research...
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PI virtual prizes...

• Sharpe, Wolffe Thornton for the best
  letterhead...

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• Miller, Bannon Reid, for best meeting
  minutes...

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• Best Notes to File... Ashley Jess

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PI project (some of) what students learned

• extended team working
• real legal fact-finding
• real legal research
• process thinking in the project
• setting out negotiation strategies in the context
  of (un)known information
• writing to specific audiences
• handling project alongside other work commitments
• structuring the argument of a case from start to
  finish
• keeping cool in face-to-face negotiations
• more effective delegation
• keeping files
• taking notes on the process...

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(some of what) we learned

• Some mail still answered too slowly (though
  better than last year)
• Feedback has been improved re negotiation
  strategy do you need more feedback on this?
• Search facility for the discussion forum archive
• Much more on the embedding of legal research from
  Foundation Course into the PI transaction
• Ardcalloch needs to be extended and further
  developed to capture more information about your
  performance
• We need more legal writing classes and
  opportunities for feedback

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file organisation

• Much better.
• Readable and understandable.
• Good notes and minutes.
• Remember what the purpose of the file is
• The full and authentic version of what has
  happened and what has been done.
• Your record of everything possibly relevant to
  the case.
• Available and intelligible to others.

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factual research

• What actually happened ? Where ? How ?
• Who says ?
• What are the critical facts ?
• What is the evidence bearing upon them?
• Is it good or bad
• Could you satisfy a judge on the balance of
  probabilities about the truth of the important
  and relevant facts if the claim had to be
  resolved by a court.

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communications

• Standard much better than previously.
• Finding the appropriate tone and content still
  tricky.
• Cooperative approach paid dividends.
• Aggressive unresponsive - petty
• Reports to clients ????
• Write to YOUR AUDIENCE.

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client reporting

• Why do you do so?
• When do you do so ?
• What do you say ?
• HOW DO YOU SAY IT ?
• IT IS NOT AN EXAM
• The main problem lies in the polarisation of the
  authorised settlement values available to both
  parties
• The value of your injury could be in the bracket
  of 1000 to 150,000
• We estimate your claim to be somewhere in the
  region of 55,700.40...

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legal research

• Oh dear !!!!!
• Oh dear...
• A list of cases and/or a photocopy of chunks of a
  book is not research.
• Did you analyse the 100 cases listed ?
• What has the Yorkshire Ripper case got to do with
  this ?
• The Occupiers Liability Act 1957 or 1984 ?
• Research in practice. FOCUS FOCUS - FOCUS

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negotiation settlement

• Start preparing for this at day one.
• All information required to start negotiating?
• Prior authority from the client ?
• What were your instructions at the meeting(s) ?
• Allow time to conclude settlement ?
• Advise the client and request instructions.
• The formality of settlement...
• Would you do it differently next time ? How ?

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just to let you know

• Relationship between insurer/Uni/firm.
• Good detailed research early helps.
• Did you understand delictual liability ? -
  Manual Handling training?
• Defenders get no access to claimant.
• Reporting to client must be intelligible.
• Contentious approach to opponent does not work.
• Client entitled to advice give it.

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and more

• Relationship between report to client,
  discussions with opponent and advice re
  settlement.
• Who admitted liability?
• Too much, too late.
• Taking advantage of others failings.
• Contributory negligence what was that about ?
• General damages and special damages

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..and finally

• McCrindle v Gala Casinos Ltd. 16 February 2007.
• Pursuer fell going down steps.
• Building Standards (Scotland) Regulations 1981.
• para10 facts agreed.
• para12 areas of dispute.
• Architects, engineers, measurements, handrail,
  lighting, no past history of accidents.
• WERE THE STEPS DANGEROUS OR SAFE ?????