Revealing as they are, the facts however only tell part of the story. In the case of the increased claims arising out of litigation practice, the facts clearly point to a new trend: an increase in claims that arise from failures of the lawyer/client relationship. When we examine these claims more closely, we see another pattern emerge: The conduct of the lawyer is often the root cause of the claim.

To get a better handle on what is happening in litigation practice and why, we interviewed five veteran litigators who are regarded by the profession as experts in their respective areas of practice.

As they point out in the following View from the Trenches interviews, the conduct of lawyers today has changed fundamentally and not necessarily for the better.

Lawyers today, they say, are more aggressive, emotional, self-motivated, impulsive and poorer communicators than in the past. The result: dissatisfied clients, disgruntled counsel and irate third parties - and a spate of new claims prompted by deteriorating lawyer behaviour.

Our interviewees comment on three specific types of claims that LPIC has identified as the bell-weather of what's happening in litigation practice:

• claims made by both individual and institutional clients because of a lawyer's oversight or inability to manage client expectations;
• libel and slander claims arising from intemperate remarks and unskilled use of the media and public forums by lawyers;
• claims based on Rule 57.07 costs sanctions sought against lawyers personally.

The scene is all too familiar: After two interminably long years, your client finally gets her day in court - only to find herself forced to talk settlement at a sum significantly below what she'd expected. When your bill then is much higher than anticipated and eats away most of the award, she takes revenge.

Or, the client sits in your office, face blank in response to your recommendation that he settle - now - for about one third of what you had suggested at the initial client meeting nine months earlier. The client leaves the office confused and frustrated, and you are relieved at being able to end the meeting. With the bloom faded from what seemed like a terrific case in the emotional first client meeting, you just want to get rid of this file rather than have to face the disappointment of your client and his "unrealistic" expectations as you see it.

Or, your client, a major financial institution, has just put the blame for a failed litigation squarely at your feet - even though the client representative had, you thought, bought into your suggested strategy and had even offered advice and instructions consistent with that strategy. The root problem: You've been lulled into a measure of complacency because of your long-standing relationship with that client which predisposes you to depend on verbal instructions and advice. But without that paper trail outlining your recommendations and the client's consent, you're an easy scapegoat for the instructing client representative.

The bottom line in all of these scenarios: The lawyer transforms from advisor to key player - as a defendant in a lawsuit refuting allegations of malpractice.

According to LPIC statistics, approximately 27 per cent of the claims filed against lawyers involve situations such as these in which a breakdown of the lawyer/client relationship on a litigation matter leads to a claim against the lawyer.

For seasoned practitioners such as David Scott of Borden Ladner Gervais in Ottawa, this failure on the part of the bar is of major concern: "In my experience, more than 90 per cent of circumstances in which clients are dissatisfied with their lawyers stem from this simple failure to manage client expectations."

Lawyers feed clients' unrealistic expectations
Moreover, contends Scott, the lawyer is often an unwitting accomplice and contributor to the flawed decision-making process that encourages the client to litigate, based on unrealistic expectations.

"On the surface, the attitude of the lawyer and client may match. The client is angry, victimized, and has expectations that inevitably are faulty. The litigator, as problem solver, provides a safe haven for the client's emotions and nurtures them rather than sets them straight. As a result, clients' expectations are launched on the wrong foot, with lawyers practically setting themselves up for failure."

"What s/he should do is step back from the situation. Our job is to analyze the situation critically, diagnose the client's many pre-conceived notions and help guide the client through a more detached decision-making process, the end result of which could be to proceed with litigation."

At the heart of that decision-making process, says Scott, are three areas that lawyers should review with their clients - no matter how sophisticated or determined they are - to ensure expectations are realistic and reasonable, given the circumstances at hand: prospects for sucess, costs, and timing (see Three Key Issues to Cover).

But all too often, he adds, litigators fall into the litigation trap: "Both the nature of the service - which is fundamentally adversarial - and our nature as service providers work against us. We want to litigate, we take on our clients' causes and then when both client and lawyer are good and mad, we proceed, without adequate communication, and without the lawyer or client having thought all things through."

Lawyers may also subconsciously fear that a frank, realistic review of the case may prompt the client to have second thoughts. "There's a tendency on our part to want to go forward, to get on with it and confront the issues later." When the lawyer involved is a relatively inexperienced practitioner, that fear may be even more critical. ""They're worried that the many caveats they are raising could lead the client to think that the lawyer is not sufficiently experienced or confident to take on their case - when in fact, nothing could be further from the truth."

"The fact is, when we pay attention to communication, when we take the time to understand our clients' needs and engage them in an informed consent process, we're communicating that we do have skills, expertise, confidence."

"What we misconstrue as a negative is, in fact, a positive. By guiding clients through the decision-making process, we're telling them we are professional, responsible, skilled individuals."

Current climate exacerbates flaws
These fundamental failures on the part of lawyers to communicate, analyze and ensure that clients understand the litigation process and its likely outcomes are exacerbated in the current practice climate, says Scott.

"Today's clients are more knowledgeable and demanding, and less reticent to take on a professional such as a doctor or lawyer. As self-perceived victims, they're also more willing to complain and seek justice," he explains.

Specifically, he singles out three factors for contributing to the increase in litigation claims:

• A more sophisticated client
  Films and television have helped demystify legal practice. Easy access to information through the internet and global publications, and the related increase in the self-help movement all have made clients more knowledgeable and more critical of both performance and results, says Scott.

  "Clients' expectations are higher, and when those expectations are not met, they're more willing to act out in an aggressive manner against the service provider."

• The changing litigation process
  Changes in the litigation process over the past decade have lengthened the amount of time it takes to litigate a matter, which in turn has escalated the quantum of costs involved. The lengthy interlocutory process combined with a decline in the number of trials, points out Scott, are both "bad news" for clients when it comes to time and costs.

  "The initial enthusiasm of seeking justice on the part of a client gives way to a numbing, time-consuming process which inevitably is very costly."

  And now that litigation practice has a foot in two camps - mediation and conventional litigation - "clients find themselves engaged in a process that does not appear to be very productive, which inevitably requires compromise and often leaves the client disappointed."

• Escalating litigation costs
  Litigation costs, says Scott, have escalated exponentially in recent years so that resolving even the simplest cases can cost tens of thousands of dollars. This is partially the product of the changing litigation process, but more significantly because of the lack of change in the process, says Scott. He points out that the trial process today is more cumbersome, elaborate and costly than it has ever been.

  "We're like a house framer who knows only one way to frame a house. We have not focused on obvious opportunities to control and reduce costs, to shorten time frames, to streamline and fundamentally reform the whole process so that the client is better served."

The institutional client: The only difference is the price tag
The issues and outcomes are the same among large corporate clients who are well schooled in the litigation process, says Scott. When the "institutional client," as we call it, comes along, so do a bevy of claims against lawyers, again based on mismanaged expectations.

In the case of the institutional client, says Wendell Wigle of Hughes Amys, the client is typically quite sophisticated about the legal aspects of business matters. The institutional client looks to the bottom line when assessing every decision and typically has significant experience in the litigation process. That experience sees huge sums spent every year on legal fees. But with pressure continuing to be exerted to function with greatly reduced legal fee budgets, lawyers are being asked to do a lot more for a lot less, or to work under more rigid rules governing the process.

There may be an ongoing business relationship built over several years with one or more of the corporation's representatives. Here, the lawyer may operate under a very general retainer. The client expects that the lawyer is up to date about the client's industry and its place in it. The client also expects that the lawyer will protect all of its interests. And if something is missed, the lawyer's abilities are called into question.

Also, the lawyer may fall into the trap of a less formal mode of communication, with little written record or explanation of advice or instructions. The lawyer may assume that what he or she is communicating, often verbally, to the instructing individual will be passed on to the management of the institutional client. Yet, perhaps because of self- interest or other corporate objectives on the part of the client, the lawyer's advice is not communicated up through the ranks in the client's organization.

Or, as is more often the case, the instructing representative of an institutional client may retain a significant amount of control over how the lawyer participates in the litigation process. This approach developed about ten years ago in an attempt to manage significant reductions in the institutional clients' legal expense budgets.

Wigle suggests that the challenge is to balance the need to be cost-effective with the need to be an independent advisor. Simply put, the lawyer must not fall prey to being used as a tool. Rather, he or she must serve the interests of the client, i.e. the corporation, not the self-interest of the instructing individual. "Whether asked or not, the lawyer must look at the big picture of the institutional client when proffering advice so that s/he can better understand and plan for possible consequences or impacts on other aspects of the client's business," points out Wigle. It's a common sense approach that's fundamental to law practice, he adds, no matter how large or small the client and no matter how simple or complex the matter at hand.