By Jen McMillan -
Snapshot
- Contemporaneous written records become valuable evidence when one person’s recollection of events differs from another’s.
- In Odlum v Friend, the NSW Court of Appeal confirmed the relevance of a solicitor’s emails and file notes in a dispute over advice given in relation to offers to settle costs issues in property adjustment proceedings.
Having written records of advice given is a highly effective way to protect your practice against claims by unhappy clients. Recording advice given to a client in a file note or an email to the client is easy when you are sitting in your office and not under time pressure. When you are away from the office, perhaps outside a courtroom where a hearing is about to commence, it is a lot harder.
This difficulty may account for some of the many claims against solicitors alleging negligent advice in relation to the settlement of court proceedings. Often the assertion is that if the client had been properly advised they would not have settled on the terms that they did. Occasionally, it is asserted that if the client had been properly advised they would have accepted an offer of settlement.
