The importance on screening in earnest - a lesson from beer cans

I recently watched a fascinating news report about the man who had the world’s biggest collection of beer cans. His hoard exceeded 9,000 and he was having to downsize to about 1,500. I am sure I was not the only one who wondered whether they were full or empty! What a waste of a hobby to acquire 9,000 empty cans. I also wondered whether any of the beer in the cans was in fact drinkable.

All of which brings me to the obvious link between this unusual hobby and the screening of legal claims by lawyers!

I remember a time when one performance indicator for law firms, was the opening of new matters. Firms would circulate a monthly list reporting on the new matters which each fee earner had opened. The more the better. It took a long time for the penny to drop that this was a meaningless exercise. Another common practice was the measurement of performance by reference to the value of work in progress. This practice was also very dangerous. Both the firm and their bankers could end up with a very misleading picture.

In both cases the end result is not dissimilar to the accumulation of beer cans which are either empty, or filled with undrinkable contents. I suspect that this approach has not entirely disappeared. There is no point in accumulating huge volumes of cases which will produce little or no return. Unless you are only practising law as hobby!

This may sound obvious to many, but the importance of screening your cases cannot be overstated.

Here are some of the factors to bear in mind when deciding whether to take on complex cases including clinical negligence or occupational disease. – 

1.      Screen the client. Is this a client who is likely to be difficult? Be particularly wary of a client who has already seen several solicitors. We all like to be heroes, to be one to reach parts other lawyers cannot reach. But it can also mean that the client has excessive expectations, will not listen to advice and even transfer any anger and frustration to you. Is the client slow at responding to messages or to return documents? Could this leave you with sleepless nights when statements must be filed?

2.      Have a firm policy on Limitation and stick to it. I have to confess to breaking this rule on occasions but only in very rare cases. For example, you should avoid taking on a Clinical Negligence case within 12 months of Limitation. These cases can become drawn out. It can often take months to obtain all of the records. Many leading experts have long waiting lists. Time can go very quickly, and you want, at all costs to avoid issuing protective proceedings and worst of all having to serve a claim form at the last minute. The same applies to most disease cases. If you are in any doubt then ask yourself if this is case where you want to face the risk of something going wrong.

3.      Have a policy on quantum. Is this a case where the costs will justify the work and cost required? This is a worry in the world of proportionality. In one Clinical Negligence case, where the settlement was ￡3250, the Claimant’s Solicitors’ bill was reduced from over ￡72k to ￡24.6k. The solicitors probably ran that case at a loss*. A guideline figure of about ￡10k is probably about right but this might be unrealistic in a high cost case.

4.      Is it clear from the start, what the case is about? That may sound obvious, but we have all been there. A potential client arrives with a plastic carrier bag full of papers. The history is long and rambling, and often angry. You want to avoid having to invest hours of time wading through material to see what the problem is. If you remain in doubt, then don’t take it on. It is better to be firm at the start than to waste hours of your time on the off chance that there might be case in there somewhere,

5.      Don’t delegate screening to inexperienced or junior staff. This can go to the heart of your business. Depending on the size of the firm I would see this as a job for senior and experienced lawyers. Whoever does the screening should have or develop background knowledge of the area of work in question. It is not feasible to screen hearing loss cases unless you can understand and interpret audiograms. Knowledge about the nature of certain types of cancer can with decisions about whether a tumour might have been treatable. This comes with experience and training.

6.      Give time to enable proper screening to happen. I used to spend every Friday afternoon with another partner, just looking at hearing loss cases. It would usually take a couple of hours. The 8 out of 10 cases that we rejected saved a lot of time and expense in the long run.

These are just guidelines. The important thing is to address the key issues as early as possible. Even if you decide to take on a case you should always manage expectations. You need to keep the door open to exit the case if it ceases to be viable or proportionate.

I never did find out if the beer cans were full…