News in Practice

Picking up a matter you have never opened

Monday, nine o'clock. A two-year-old matter on your desk, a hearing in eleven days. What happens over the next three hours, step by step, and why.

For lawyers and in-house counsel. The real sequence of picking up a matter, and the precise moment at which you give up trying to understand why.

A two-year-old matter lands on your desk on a Monday morning. The person who was running it is on sick leave, the hearing is in eleven days, and you have never touched it. You have the morning. What follows is the sequence of those three hours, and it varies little from one practitioner to another, in a firm as in a legal department: this is not a question of individual method, it is a consequence of how matters are preserved.

9:00 · The most recent submissions

You open the latest pleadings, and that is the right instinct: they tell you where things stand. You find the state of the claims, the arguments advanced, the exhibits relied on. In forty minutes you know what the matter asserts.

You do not know how it got there. Pleadings present a constructed position, coherent, stripped of its hesitations, which is exactly their function. They contain no trace of what was considered and abandoned, nor of the reasons why a particular claim was quantified at that level rather than another.

This is a general property of procedural documents and it is worth noting: the better they are drafted, the less they carry of the path. Excellent pleadings are those in which no hesitation, no second thought and no discarded option can be seen. They present a position as though it had always been obvious, which is their merit and which deprives you of everything.

You note three points that surprise you: a subsidiary claim that looks weak, the absence of an argument that seemed obvious to you, and a quantification whose basis you cannot see. Those three points will occupy the next two hours.

9:40 · The chronology you have to rebuild

You open the procedural file to reconstruct the sequence. Claim form, defence, disclosure, case management application, consolidated submissions.

You build a table, because one always builds a table. Date, step, content, exhibits served. Fifty minutes for twenty-six rows.

You add a column for deadlines met and missed, because two dates in the case management history elude you. You abandon it after ten minutes: the information is probably in the court's electronic file, and opening it would cost the quarter of an hour you no longer have.

An equivalent table almost certainly exists somewhere, built by whoever ran the matter before you. You do not know where it is, and looking for it would cost as much as rebuilding it. That is the calculation everyone makes, and it is rational every time.

At the end of the exercise you understand the chronology of the steps. You still do not understand the three points from nine o'clock.

10:15 · The exhibits, and what they do not say

You open the schedule. Ninety-two exhibits, ordered by date of service, each with a two-line description.

A description tells you what an exhibit is. It does not tell you why it was served, what it establishes in the argument, or what it was produced against. Exhibit 47, an internal letter from the other side, is clearly important: it is cited four times in the submissions. You understand what it contains. You do not understand how it was obtained, which could matter if the other side challenges the manner of its production.

You note the question and move on, because it is already half past ten and you have prepared nothing.

10:30 · The moment of giving up

You look for the reason behind the weak subsidiary claim. You open the matter's email, filter the six months preceding the submissions, scan seventy messages. You find a discussion about quantum with no visible conclusion, and a reply from the client to a question you cannot identify.

It is ten to eleven. You have used half your morning and you have not begun preparing the hearing.

This is where the central act of any handover occurs, and nobody ever describes it because it is slightly humiliating: you stop looking for why. You decide to settle for knowing what. The subsidiary claim is weak, so be it; you will argue what is written without knowing whether it was a choice or an oversight.

That surrender is reasonable, indeed the only possible decision given the time available. It carries a cost that does not show: you will argue a matter whose trade-offs you do not command, and if the other side attacks precisely one of them, you will have nothing to say.

You stop looking for why. You settle for knowing what. That is the central act of every handover, and it appears in no procedure.

11:00 · What you decide not to check

Before making the calls, you carry out a triage that nobody teaches and everybody practises. Of the five questions open since nine o'clock, you keep two and abandon three.

The criterion is not their importance, it is the likelihood of their arising at the hearing. You keep the subsidiary claim, because the other side will attack it. You abandon the question about exhibit 47, because it is less likely, while knowing it would be more serious if it arose.

That triage is a bet, and you make it with the information you have, which is almost none. This is the second hidden cost of a handover: not the time lost, but the degraded quality of the bets you are forced to make.

11:15 · The three calls

You call the associate who drafted the submissions. He is on another matter, gives you ten minutes, and tells you the quantification came from a note by the client's accountant. He does not remember the subsidiary claim.

You call the client, which is delicate: asking why something was done amounts to telling them you do not know. You therefore phrase the question differently, which takes longer and yields less.

Finally you call the colleague on sick leave, which you wanted to avoid. In three minutes he gives you what you spent two hours looking for: the subsidiary claim was maintained at the client's express request, against the firm's advice, for reasons connected to another dispute.

That information is decisive. It changes how the matter should be argued. It existed nowhere, and it took four people to surface it.

12:10 · What is left of the morning

You have three hours and ten minutes of work behind you and the sense of having done nothing, which is strictly accurate: no deliverable has advanced.

You have nonetheless produced something, and that is what makes the situation particularly absurd. You have rebuilt a chronological table that already existed, retrieved a decision that had been taken, and identified a source for a figure that was known. You have recreated information rather than created any.

And that reconstruction will survive no better than the last one. Your table will stay in your files, the colleague's answer will stay in your memory, and the next person to pick up this matter will repeat the same morning.

The same morning, in a matter that holds together

None of the above concerns the legal difficulty of the case, which is modest. All of it concerns access to what has already been decided.

It is worth stating what this does not change, to avoid overpromising. You will read the same submissions, review the same exhibits, and prepare the hearing with the same rigour. The legal difficulty remains entire, and it should.

In a matter where trade-offs are preserved with their grounds, the morning unfolds differently. At twenty to ten, the subsidiary claim carries its note: maintained at the client's request, against advice, because of a related dispute. The quantification carries its source. The absence of the obvious argument carries its reason, or signals that there was none, which is also information.

You are no faster at reading the submissions, nor at rebuilding the chronology, which remains useful. You do not give up, and that is the real difference. And you begin preparing the hearing at ten rather than at noon, with a matter whose choices you command.

What costs, and what does not

The calculation is worth setting out, because it is the only argument that carries with someone who has no time.

Preserving those three pieces of information would have taken under five minutes spread across two years: one sentence when the client insisted on the subsidiary claim, a source reference when the figure was set, one line the day the argument was dropped.

Retrieving them cost three hours across four people, including a colleague on sick leave. The ratio between the two is of the order of one to fifty, and it is worse still if one counts the risk carried into the hearing.

That ratio is what makes the question interesting. This is not a marginal gain in organisation; it is a difference of several orders of magnitude between the cost of preserving and the cost of reconstructing, on information one knows with certainty will be asked for again.