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Quite often I advise clients who have a situation that is becoming difficult, but in which they do not yet want to involve lawyers. I am therefore advising in the background.

Sometimes the other party only seems to want to communicate by telephone, and seems reluctant to write letters or e-mails. This makes me suspicious that the other party does not want there to be a record of what he has said, even that he may wish it to be deniable .

In such situations, the advice that I give clients is two-fold. first, they should keep a log of phone calls : date and time, other party to the call, what was discussed and agreed, that sort of thing . Second, following a telephone call they should send a simple e-mail to the other person : ” following our conversation, I confirm that we agreed …”

If such an e-mail is sent , then unless there is a fairly prompt reply correcting any misunderstanding , it is going to be difficult for the other party to deny that the e-mail is an accurate record of what was agreed , particularly if the denial is only made several months later in the course of court proceedings .

This kind of evidence will assist considerably in helping the judge decide what was said .  There is now some corroborative evidence and it is no longer a case of it simply being one person’s word against the other’s.

black and white

June 22nd, 2012

Earlier this week I was heavily defeated in a game of Othello.  This photograph shows the final position (I was black).  My opponent has a PhD in mathematics from Cambridge University, and had been explaining the in-depth theory of what I had thought to be a simple game.  He more or less guaranteed to beat me by wiping me out before all the pieces were on the board.

I am pleased to say that I have a better track record in litigation/dispute resolution.  I described some of the processes that I go through in my post on Zen and the Art of Law.  Perhaps the procedures whereby evidence is disclosed mean that the process has fewer imponderables, certainly once the parties’ cards are on the table.

But there is a greater difference between what we do in assisting clients in dealing with disputes and a game such as Othello or Chess.  In those games, the outcome is black and white, or should I say black or white.  There is only one end: one player wins and the other loses.  The objective is to defeat the opponent.

But dispute resolution does not always have to be black and white.  Richard and I work with our clients to understand and agree objectives.  Often our role is to advise and to assist in resolution. In many situations our business clients want to achieve a commercial deal which enables both parties to move forward.  Total victory over the opponent is not always what is required.

Zen Again – A follow-up

June 16th, 2011

I got this from my friend who sent me the Sun Tzu quotation used in the last blog, “Zen and the Art of Law”. If we had a comment facility, I would post it as a comment. Anyhow, I share it with you…

“Yes very nice. Ancient text that can help in so many areas. Read the rest of this entry »

Zen And The Art Of Law

June 10th, 2011

“It is said that if you know your enemies and know yourself, you will not be imperiled in a hundred battles; if you do not know your enemies but do know yourself, you will win one and lose one; if you do not know your enemies nor yourself, you will be imperiled in every single battle.” Sun Tsu, “The Art of War”.

Zen And The Art Of Law

A friend sent me this quotation, asking whether it applies to what I do. I think it does. Litigation has, after all, been described as a form of warfare. Let me add another well-known military-related quotation into the discussion, this time by Donald Rumsfeld, former US Secretary of Defense: Read the rest of this entry »

Quite often in civil litigation there is a direct conflict of evidence. Two different people say different things about the same event. When that happens I am often asked how a judge is going to “decide who is telling the truth”, or, as we lawyers like to put it, how the judge will resolve that conflict of evidence.

It's just his word against mine, right?

In civil proceedings the task of the judge is to decide the facts of the case on the balance of probabilities. That is, he must decide which is more likely to be the true position. Read the rest of this entry »

Getting in first?

January 31st, 2011

In this first blog post, I am going to look at a situation that I have already seen twice since joining Graeme Quar & Co on 4 January. I have had to advise from both sides. Read the rest of this entry »