Litigation Risk

A recurring issue for litigation lawyers is how best to advise clients on the merits of cases and their settlement value. The giving of optimistic advice can lead to a client who proceeds to trial and is disappointed by the outcome complaining that they were not properly advised about the risks. The giving of pessimistic advice can lead to a client who settles and later regrets doing so blaming their lawyer. The giving of advice which becomes more negative as trial looms may lead a client to question their legal team’s stomach for the fight, or to lose confidence in their team’s expertise.

A number of decisions in recent years have considered the question of when a lawyer will be found to have given negligent advice in relation to the prospects and settlement of litigation. For example, in the case of Levicom v Linklaters (2010), solicitors’ advice had been expressed in terms that the contractual provision upon which a dispute turned was clear, when in fact the position was more