Litigating Contract Disputes: Taking Instructions Print E-mail
Written by Philippe Doyle Gray   
Monday, 13 November 2006

 

 

LITIGATING CONTRACT DISPUTES: TAKING INSTRUCTIONS

 

 

Philippe Doyle Gray

 

Barrister

 

www.PhilippeDoyleGray.com

 

 

What to talk about

1.     The point of taking instructions in contract disputes is to answer just one, simple question: who was supposed to do what, when, and for how much?

2.     You might remember being taught as an undergraduate at university about the 4Ps of contracts: the parties, the price, the period and the performance. In other words, the who, how much, when and what of agreements. All contractual disputes necessarily canvass each of these 4 elements. They may not all be in dispute, but proof of each of these 4 elements is essential before any Plaintiff can succeed. Accordingly, if you act for a Plaintiff you need to satisfy yourself as to the existence, nature and extent of each of these elements. If you act for the Defendant, not only must you do the same work as the solicitor for the Plaintiff, but you also need to decide which, if any, of those elements will be the subject of admissions by your client, and which elements will be in dispute.

3.     Irrespective of whether you interview your client or a witness, the answer to the question as to what to talk about will be confined to seeking instructions of at least one, and perhaps all of these elements. Of course, there may be issues that extend beyond mere contractual elements. There may be relevant pieces of legislation, and there may be further or alternative causes of action that are relevant. If so, then these other issues will influence your decision as to what to talk about. However, irrespective of what other issues there are, you are expected to answer to the question: Who was supposed to do what, when and for how much?

How to talk to someone

4.     Having decided what the topic of conversation is to be, the challenge then arises to find better ways of addressing that topic so as to maximise efficiency, maximise effectiveness and minimise the cost to your client. In searching for ways in which these goals can be achieved, the act of conversing with someone in your professional capacity can be analysed in 3, broad perspectives: strategic, technical and ethical.

5.     Interview strategy in the context of contractual disputes is not particularly different from interview strategy with respect to other, civil law disputes. The purpose of formulating an interview strategy before conferring with your client or a witness, is to identify and refine what it is that you wish to achieve. In other words, you are identifying goals. This is discussed at paragraph 8 below.

6.     Having identified your goals, how can these goals be best achieved? Knowing where you want to go will make it more likely that you get there. However, like any journey, there are various ways of travelling from where you are to where you want to go. Some modes of travel are better than others. This is equally true of interviewing clients and witnesses. This paper identifies 4 techniques that can be employed in contractual disputes to reach your goals, starting at paragraph 24 below.

7.     Whilst your strategy and technique concern what you can do, ethics concerns what you should do. A useful guide to interviewing ethically can be found in the Solicitors Professional Conduct and Practice Rules. While there are a few rules that deal specifically with interviewing, there are other less specific rules that apply to litigation, which depend upon prior events, such as what occurred during an interview. A prudent lawyer needs to be aware, at the time of interview, of the operation, nature and effect of these rules to avoid professional embarrassment. These rules will be identified and considered from paragraph 47 below.

Interview Strategy

8.     There are 3 strategic elements to a professional interview: how much time is the interview going to take, the cost to your client of that time, and the value to your client of that time. In contractual disputes, these concerns reduce down to: first, identifying an appropriate duration for an interview; second having regard to your client’s expectations; third, monitoring the interview dynamically. Each of these will be considered in turn.

No more than 30 minutes

9.     Every initial interview with a client or witness in a contractual dispute should take no more than 30 minutes. In that time, a competent practitioner will have identified the parameters of their engagement. That lawyer can then plan the future conduct of the proceedings.

10.  Of course, there will be many conferences with clients and witnesses that will be longer than 30 minutes. It is extraordinarily uncommon to settle an affidavit in a conference of less than 1 hour duration, and it is reasonably common for a conference to take between 1 and 3 hours, depending on the length, complexity and centrality of the issues canvassed in an affidavit, and depending upon the degree to which a deponent can articulate relevant testimony. There will often be occasions where careful consideration and lengthy explanation will need to be given to clients, and sometimes other non-lawyers involved in disputes such as expert witnesses. However, conferences to settle affidavits, meetings with the client to give advice, and briefing expert witnesses have nothing to do with taking instructions. Quite the opposite is true: these interactions are where lawyers give directions. Information moves from the lawyer to the interviewee.

11.  When lawyers interview people to take instructions, information must necessarily flow from the interviewee to the lawyer. Usually, the information supplied will commence at a relatively general level, and proceed to become more narrow, detailed and specific. The first interview with a client or witness must necessarily be the most broad so as to ensure that the lawyer is able to properly apply his or her professional skill in servicing his or her client. The time limit of 30 minutes is directed to that type of interview.

12.  What is the point of such a time limit? If the time limit is reliable (and you have to take it as a matter of trust from me that it is reliable), then it allows you to measure your progress against an objective standard. If you have commenced a first interview with a person, and it has taken 20 minutes to find out their name and address, then you are doing something wrong. In such an extreme case, while it is possible that you are not communicating effectively, more likely what is occurring is that you are unable to control the interviewee and direct the conversation to what is relevant. Busy lawyers periodically encounter talkative witnesses who are difficult to control. However, if you observe yourself repeatedly spending more than 30 minutes with any witness the first time you interview them, then you are doing something wrong. May I suggest that whatever it is that you are doing wrong, it is most likely to be one of the subjects dealt with later in this paper. Accordingly, you may choose to analyse your behaviour in light of these other topics, and thereby improve your skill.

Your client’s expectations

13.  Clients could not care less about proprietary estoppel. Res judicata bores them to tears. There is no such thing as an interesting question of law.

14.  The whole reason why you are interviewing someone is because of the fact that you have clients who expect something from you. There is no utility in interviewing someone unless that leads to the satisfaction of your client’s expectations.

15.  In commercial disputes, the expectations of clients can be identified by asking 3 questions: What does the client want? How much will that cost? How long will it take?

16.  As far as what the client wants is concerned, this is a much broader question than what the client wants from you. All commercial disputes are about money, so it is very likely that money will be on your client’s mind. In a contractual dispute, it may be nothing more than wanting an amount of money to which your client believes he, she or it is entitled. There may however be other concerns that are also about money, though not obviously so. For example, your client may be in a continuing business relationship with a Third Party, and while your client believes that he, she or it is entitled to a certain sum of money from that Third Party as a result of a transaction, your client does not wish to jeopardise other transactions. Alternatively, your client may be involved in what at first blush appears to be a completely uneconomical dispute over a very small sum of money with a Third Party, but your client may in fact have similar contracts with a very large number of Third Parties. While each contract is for a small amount of money, the totality of all the contracts is a significant sum of money. A dispute may be seen by your client to be economical in the wider context of your client’s relations with a large group of Third Parties.

17.  Sometimes, even in commercial disputes, clients want things other than money. An example is a dispute concerning the sale of land. A vendor, or purchaser, of a parcel of land may be less interested in damages and far more interested in specific performance of that contract. However, it is also surprisingly common for a client’s desires to extend into emotional areas, with which lawyers are traditionally quite inept. A client who is a professional person who has not been paid for their services may interpret non-payment as a criticism of their professional skill and competence. Commercial disputes between business people who are long time friends can include elements of personal offence, anger or sadness. There may be a great deal of commercial sense in resolving a dispute in a particular manner, but if your client wants things that money cannot buy, no such settlement proposal will be palatable.

18.  It is difficult to conceive of advice properly given to commence litigation, or to pursue (or not to pursue) alternative dispute resolution, without identifying what it is that your client wants. Knowing what it is that your client wants before starting an interview with a witness is essential to canvassing relevant subjects during the interview.

19.  Most clients care about cost. This is not simply the amount of your bill, but also the opportunity cost to the client. That opportunity cost will include the client’s own time (e.g. travelling to see you, conferring with you, and spending time away from their business), the client’s own money (i.e. the cost to come and see you, and the income foregone in coming to see you) and the client’s personal resources (i.e. making up for the time that it takes to come and see you). Your client’s concern with cost, of whatever type, is broader than the cost of the interview. The expectations your client has about cost will influence whether or not information that you obtain in an interview with a witness is of any value to your client. A witness may provide information that is potentially very useful to you, but it may need to be verified, and the cost of verification and the cost of proving in accordance with the law of evidence the information that a witness gives you may be prohibitively expensive. Knowing before any interview what costs your client is willing and able to incur (and not simply knowing how much money your client is willing to spend) is essential for you to efficiently and effectively decide whether you should conduct the interview, and if so, then how to conduct the interview.

20.  The final area about which clients commonly have expectations is the duration between the present, and the subsequent fulfilment of their expectations. Most business people in dispute recognise a trade-off between how much money should be paid, and when it should be paid. Clients typically understand that the longer the period for money to be paid, the larger the payment should be. This applies equally to business people either paying or receiving money. Time periods are more important to some clients than others. Some businesses operate on a basis where targets need to be met on a monthly, quarterly or annual basis. Knowing the importance to your client of satisfying expectations within a particular time period is essential to the decisions that you make, and the advice that you give as a professional lawyer.

Fulfilling your client’s expectations

21.  Having noted the time, and bearing in mind your client’s expectations, the next strategic concern in any interview is dynamically assessing how the interviewee can contribute to the satisfaction of your client’s expectations.

22.  If the interviewee is your client, then those expectations will usually be satisfied by listening to your client tell their story, identifying what your client’s expectations are, and accurately communicating your understanding of those expectations to your client. In other words, clients want you to listen, and want to be sure that you have understood what it is they have told you. This is known as ‘active listening.’ That may not be enough to satisfy them, but it is an essential component of any first interview.

23.  If the interviewee is not your client, then there are 2 ways in which that person can satisfy your client’s expectations: either they are a witness in their own right, or they can identify other evidence in the form of other witnesses or direct evidence. In the context of contractual disputes, ‘direct evidence’ means documents, business records, databases, registers and other compendia of information. Accordingly, when first interviewing someone in a commercial dispute, you should bear in mind whether or not they can and should be a witness, and if not, if they can identify other potential witnesses or other direct evidence. If an interviewee does appear to be a likely candidate for a witness, then you should assess how valuable a witness the interviewee could be. However, if an interviewee is of no help as a witness in their own right, and cannot point you in any other useful direction, there is no point taking instructions from them. If it takes you 30 minutes to discover that the interviewee knows nothing and cannot help you, you have far less to regret than if you make the same discovery after a 3 hour interview.

Interview Technique

24.  Contemporary contractual disputes usually possess the same, recurring characteristics. While it may be just as common today, as in times gone by, to encounter agreements not evidenced by writing, when it comes to agreements that are evidenced by writing, it has become far more common today to encounter a great deal of writing. Notwithstanding the promises of the paperless office, electronic communication in general and email in particular has led to an explosion of documentation. This paper is not intended to address ways in which that paper should be managed or approached, but rather it is directed to the impact this documentation has on taking instructions. See paragraph 27 below.

25.  Two techniques born of forensic advocacy lend themselves to immediate application when taking instructions in contractual disputes, and those will be canvassed at paragraph 31.

26.  Finally, an effective technique in drafting affidavits and witness statements lends itself, in a slightly modified version, to interviews. This will be explored at paragraph 42.

Read documents beforehand

  27.  Documents do not forget. They do not waffle, even though they regularly venture into unnecessarily elaborate detail. Information that documents convey is always the same, though the significance of that information may vary. Documents do not get tired, nor are they ever late for meetings. Documents are as reliable, or as unreliable as their authors, but in every other respect are far more useful sources of instruction. 

28.  It is inevitable in any contractual dispute that results in litigation that lawyers will need to read and consider at least some, and usually many documents. In commercial disputes, pleadings will have to be drafted, particulars requested, and discovery given. Experience teaches lawyers that when clients are asked to hand over all relevant documents that in any conceivable way bear upon their problems, clients always fail to hand over everything. In my experience, it is usual for lawyers in contractual disputes of any complexity to have before them all the relevant documents, only after making 3 requests of the clients to produce everything. Pleadings cannot be drafted, and particulars cannot be supplied in commercial disputes without recourse to documentation. Accordingly, in any contractual dispute, requesting as much documentation, as early as possible, will ultimately be of benefit to the client. However, will there be a difference in benefit to the client depending on when those documents are received compared with when the interview occurs.

29.  While documents are just as reliable as people, they are superior in every other aspect to people as far as taking instructions is concerned. Before interviewing witnesses, and preferably before any substantial interview with a client, all the relevant documents should be obtained, read and understood. This will enable inconsistencies to be identified between information conveyed during an interview, and information contained in documents. Such inconsistencies have several common explanations: the interviewee has made a mistake, the author of the document has made a mistake, or the interviewee and/or the author of the document is untruthful. In commercial disputes, the third possibility is rare, but it does happen.

30.  Comprehension of the contents of relevant documents enables an interviewer to explore inconsistencies with an interviewee’s information effectively, efficiently and ethically. Even if documents do not contain any information that is dramatic, they at least form a basis upon which you may ask questions. Obviously, if you have documents in your possession, someone must have believed that they were relevant. Documents that do not appear to be relevant upon their face can be discussed, and whatever the result, a view can be taken as to the relevance and importance of those particular documents.

  

Speak in someone’s own language

31.  I am not merely suggesting that you obtain an English – Chinese interpreter for your Chinese client. Speaking to someone in their own language means being attuned to the vocabulary the interviewee employs. That vocabulary will almost certainly be different to yours. Identifying the differences is important for 2 reasons: first, it provides you with an opportunity to employ words and phrases with which the interviewee is familiar and comfortable; second, it identifies the register at which affidavits and witness statements for the interviewee should be drafted, and provides words and phrases to be used in any such statement to properly convey the interviewee’s evidence.

32.  People who understand what you are saying, and who are comfortable in your presence, will tell you more than people who do not understand you, and whom you make uncomfortable. Lawyers start at a disadvantage, like undertakers and dentists, in that seeing lawyers usually means something unpleasant has happened. People are naturally wary of having any unpleasantness visited upon them.

33.  Identifying particular words and phrases used by an interviewee should trigger a consideration of whether you understand those particular words and phrases. By clarifying with an interviewee what is meant by those words and phrases, an interviewee learns that what they have said has been listened to. They also believe that what they have said is of some importance. They believe this simply because a lawyer is repeating it back to them. That observation may not immediately make sense to you, but I suggest that it is nevertheless true. Once an interviewee sees that a lawyer is actively listening to them, they accept the importance of what they themselves have to say, and become more confident in themselves and more willing to part with information. This is exactly what lawyers want.

34.  Lawyers intimidate many people, including people that lawyers would normally think could or should not be intimidated. Notwithstanding professed popular egalitarianism, and notwithstanding many lawyer jokes, lawyers retain a very high status in society. Many people will perceive themselves to have a significantly lower status, even though they may never openly admit it. For many people, a significant discrepancy in status with a person with whom they are conversing is a trigger for apprehension. Other interviewees expect lawyers to be arrogant and uncaring. While they may not be apprehensive about speaking with lawyers, they may well be disinclined to volunteer useful information. By using words and phrases by which an interviewee expresses himself or herself, a lawyer provides a mechanism by which the interviewee can identify with the lawyer, and accordingly be comfortable with a lawyer. Once an interviewee is comfortable, disdain and apprehension evaporate.

35.  In linguistics, a ‘register’ is a subset of a language used for a particular purpose or in a particular social setting. For example, an English speaker may adhere more closely to prescribed grammar, pronounce words ending in -ing with a velar nasal (e.g. "walking", not "walkin'") and refrain from using the word "ain't" when speaking in a formal setting, but the same person could violate all of these prescriptions in an informal setting.[1]

36.  Different people speak about the same topics in different registers at different times. For example, lawyers tend to use higher register language in Court than they do out of Court. Everyone has a range of registers in which they can comfortably communicate. Usually, the better educated a person is, the higher the register. Depending on the nature of the education, an education may also result in a broader register. Lawyers, journalists, public relations consultants and comedians are examples of people with very broad registers. Highly educated professionals usually also have high registers, but for example an engineer will not have as broad a register as a journalist. Sportspeople, labourers and people who earn their keep other than by communicating usually have low registers.

37.  Forcing yourself to adopt words and phrases used by an interviewee leads you to identifying the interviewee’s register. When the time comes to draft an affidavit, identification of that register will be critical in drafting an affidavit which accurately conveys relevant evidence, while at the same time is a written statement that the deponent can understand, and with which they are comfortable. There is also a collateral benefit seen in cross-examination: a statement drafted at an appropriate register prevents the possibility that your witness will be embarrassed whilst testifying when propositions are put to them under cross-examination that employ the language appearing in their own affidavit in respect of which the witness does not understand, or worse still, misunderstands. This is usually an entertaining, if not always fruitful, line of cross-examination of witnesses not fluent in English.

38.  For all these reasons, a useful interview technique is to employ a vocabulary different to your own, that is used by the interviewee.

Ask the W questions

39.  When barristers are trained to conduct examination in chief, they are invariably told to ask one of the 5 W questions. See if you can see a pattern:

(a)   What …?

(b)   Who …?

(c)   When …?

(d)   Why …?

(e)   How …?

40.  Questions can be either open or closed. An open question opens the field of possible answers, whereas closed questions confine the field of responsive answers. Asking any question commencing with any of the 5 words in the previous paragraph forces the question to be an open question. Accordingly, a “W question” is a simple way to always ask open questions, without having to think about it. Of course, there are other open questions that may be asked without employing any of these 5 words, but that does not detract from the value of this technique: by remembering to ask a question that begins with one of these 5 words, you will be asking open questions.

41.  What is the value in asking open questions? There are 2 main reasons: first, taking instructions is concerned with the receipt of information, and far more information can be received in a given amount of time by asking open questions rather than closed questions; second, open questions are ethically safer than closed questions. The reason for this will become clear in the ethical interviewing section below at paragraph 47.

Keep in mind their affidavit

42.  As far as witnesses are concerned, affidavits are supposed to be nothing more than a tidy, written version of evidence that they would be prepared to give orally in the witness box in Court. Some witnesses fail to appreciate this. Some lawyers fail to appreciate this. The advantage of having evidence contained in an affidavit, is that a properly drawn affidavit can efficiently convey a witness’ testimony.

43.  There are better and worse ways of drafting affidavits. For present purposes, what is important is to recognize that most admissible evidence capable of being given by witnesses follows the same pattern of conveying 3 ideas in a particular order: time, action, and event. The pattern can be seen in the following examples:

(a)   On 29 November 2005, I saw a motor car accident.

(b)   At 9.23 pm, I sent an email, a copy of which is annexed and marked “X”.

(c)   I then said “That’s not what I asked for, and we’re not paying for it until you fix up the work.”

44.  To keep in mind an interviewee’s affidavit means to search for this recurring pattern in what the interviewee says. Often, information will be conveyed with one of those 3 elements missing, most usually the time. Noting these elements during conversation will ensure that you canvass all 3 elements with an interviewee. In other words, the job can be done right the first time, without the need to return to the witness for basic, missing information.

45.  This is particularly important in those rare instances of crime, fraud or serious misconduct. Solicitors Rule 17.2 states:

17.2      A practitioner must not draw an affidavit alleging criminality, fraud, or other serious misconduct unless the practitioner believes on reasonable grounds that:

 

17.2.1   Factual material already available to the practitioner provides a proper basis for the allegation;

 

17.2.2   The allegation will be material and admissible in the case, as to an issue or as to credit;

 

17.2.3   The client wishes the allegation to be made after having been advised of the seriousness of the allegation.

 

46.  Any hint of criminality, fraud or other serious misconduct in an affidavit will be scrutinised by opposing parties, and will be the subject of particularisation and objection in the absence of specificity. Employing the affidavit drafting technique of stating the 3 elements: time, action and event in an affidavit, minimises the opportunity for generality in the drafting of affidavits alleging criminality, fraud or other serious misconduct.

Ethical Interviewing

47.  Solicitors unfamiliar with litigation may be forgiven for believing that if they brief counsel to appear on their client’s behalf, the only solicitor’s rule directly relevant to the litigious work preparing for trial is Rule 17, part of which was quoted in the last section. The reason for this, is the unfortunate structure of the Solicitors Rules that contain a whole class of rules inaccurately described as “advocacy rules”. Whilst it is true that some of these rules have to do with advocacy, and are only relevant when a solicitor is himself or herself an advocate, there are other rules that have nothing whatsoever to do with advocacy, and directly affect a solicitor in the course of doing solicitors work in the conduct of litigation. It is these, poorly advertised solicitors rules that will be considered in this section.

48.  The first rules are Advocacy Rules 43 and 44:

Integrity of evidence

 

A.43. A practitioner must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings.

 

A.44. A practitioner will not have breached Rule A.43 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.

 

49.  These rules prohibit the coaching of witnesses. Coaching occurs when a lawyer decides what would be useful for a witness to say, and to rehearse the witness’ evidence so that the witness says what the lawyer wants the witness to say.

50.  If that is all these rules were meant to achieve, then they could be drafted far more succinctly. They could simply say “The coaching of witnesses is prohibited.” These rules are intended to cover a much wider field than merely coaching witnesses.

51.  The conduct that is prohibited is “suggesting” what it is that a witness is to say. One may inadvertently suggest to a witness what they should say by asking them closed questions[2]. Indeed, a routine cross-examination technique is to ask closed questions that suggest an answer as being the only truthful answer. The ethical prohibition extends to “any stage in the proceedings” which necessarily includes any time when witnesses are interviewed. Remember that many witnesses are intimidated by lawyers, and often arrive at an interview under the misapprehension that the lawyer knows all the relevant facts already. Accordingly, when a witness is presented with a closed question suggestive of an answer different to the one that they would otherwise give, they sometimes agree with the questioner when they should in fact disagree. A prudent lawyer should minimise the possibility of this occurring, and that is achieved by asking open questions of an interviewee. That is not to say that an interviewee may never be asked a closed question. For example, the following exchange between lawyer and witness is quite proper:

Lawyer:           Did you notice anything on Saturday?

 

Witness:          I saw a car accident on

Elizabeth Street
.

 

Lawyer:           What happened?

 

Witness:          I saw a blue car run up the back of a red car.

 

Lawyer:           So what you are saying, is that on Saturday, you saw a blue car collide with the rear of a red car.

 

Witness:          Yes.

 

52.  The next relevant rules are 46 and 47 that state:

A.46. A practitioner must not confer with, or condone another practitioner conferring with, more than one lay witness (including a party or client) at the same time, about any issue:

 

(a) as to which there are reasonable grounds for the practitioner to believe it may be contentious at a hearing; or

 

(b) which could be affected by, or may affect, evidence to be given by any of those witnesses.

 

A.47. A practitioner will not have breached Rule A.46 by conferring with, or condoning another practitioner conferring with, more than one client about undertakings to a Court, admissions or concessions of fact, amendments of pleadings or compromise.

 

53.  These rules address the same evil addressed by Rules 43 and 44 from a different perspective. In a group of 3 people composed of 2 witnesses and one interrogator, if an interrogator asks a question that either witness can answer, both witnesses may answer that question, and both witnesses will naturally strive to be consistent with one another when answering that question. That tends to alter the evidence that an individual witness will give. Accordingly, any practice that tends to influence the content of a witness’ testimony should be avoided, and these rules discourage that practice.

54.  Even when lawyers interview witnesses alone, sometimes witnesses behave as if a second witness is present. This often happens in the case of husbands and wives. Spouses often talk about things that are said or done, to or by, their spouse, as if those things were said or done by or to themselves. Often that will be because these 2 witnesses will have discussed what it was that they perceived previously, and will not disentangle that shared narrative when interviewed by a lawyer. In those circumstances, careful questioning employing the techniques identified in this paper should separate a witness’ own perceptions from those of his or her spouse.

Who else to talk to

55.  Obviously, one of the reasons why instructions are taken from clients and witnesses is to identity what other witnesses should be interviewed. That is not the subject to which this section is directed.

56.  Deciding who else to talk to necessarily ventures upon 2 areas that are regulated by the Solicitors Rules. One area is well know, but the other less well known.

57.  The well known ethical constraints flow from Solicitors Rule 18, that states as follows:

18 Duty not to influence witnesses                                

 

A practitioner must not, in relation to any matter or event which is the subject of adversarial proceedings before a Court, confer with or interview:

 

18.1 the opposing party in the proceedings including a person who may be represented or indemnified in the proceedings by an insurance company; or

 

18.2 where the opposing party, or a prospective opposing party, is a corporation, any person authorised to make admissions on behalf of the corporation, or to direct the conduct of the proceedings; unless –

 

18.3 the other person, if unrepresented by a practitioner, has been fully informed of the practitioner’s purpose in conducting the interview, has been advised to seek and has had the opportunity of obtaining independent legal advice; or

 

18.4 the practitioner acting for the other person has agreed to the interview on conditions which may include the conduct of the interview in the presence of the practitioners for both parties.

 

58.  Some recurring categories of people that fall within the various sub-rules include the following: Rule 18.1 – potential Defendants or Cross-Defendants; Rule 18.2 – any employee of a corporation; Rule 18.3 – all unrepresented people.

59.  The less well known regulations are Advocacy Rules 49 and 50, that state:

A.49. A practitioner must not take any step to prevent or discourage prospective witnesses or witnesses from conferring with the opponent or being interviewed by or on behalf of any other person involved in the proceedings.

 

A.50. A practitioner will not have breached Rule A.49 simply by telling a prospective witness or a witness that the witness need not agree to confer or to be interviewed.

 

60.  Sometimes witnesses indicate they have been asked to be interviewed by “the other side”, and ask you if they should speak to them. The appropriate answer to such an inquiry is to say to the witness that it is entirely a matter for them. It is very easy for your opponent to ask a witness under cross-examination why it was that they were reluctant to speak before trial, and it is equally easy for the witness to respond by saying that they were told not to do so by you.

61.  Some lawyers view Advocacy Rules 49 and 50 as an unfair restriction on their practice which does not usefully contribute to the resolution of a dispute. Winning at any cost entails discouraging witnesses from speaking with opponents. May I suggest that a better way of viewing these rules is as a warning to conduct interviews effectively and thoroughly, so that if a witness is interviewed by an opposing lawyer, the information conveyed in that other interview will be very similar to that information conveyed in your interview. Remember that cross-examination is nothing more than a formal interview. Accordingly, interviewing witnesses provides an opportunity to observe how a witness will perform under cross-examination. The interview will also provide an opportunity to gauge to what degree the witness’ information can be relied upon by a lawyer during settlement discussions, and accordingly will provide a lawyer with an indication as to how settlement negotiations should be approached and what role that particular witness’ information should have in those negotiations. It is far better for your client that all parties operate on the same facts. Finally, the most important reason is to obey the rules is because, as an officer of the Court, you have to.



[1] See the useful discussion in Wikipedia at http://tinyurl.com/yagf8u

[2] See paragraph 40 above

 
module

valid xhtml? | valid CSS?