I recently received a Defence from opposing counsel who reached out to have “settlement discussions” prior to the Settlement Conference.
Upon reviewing the Defence, I had a lot of questions. Allegations were made which included (but not limited to) our client failed to accept a “reasonable offer,” made by the Defendant and the fees charged by our client were above market value. Our client was not aware of any offers made.
When I questioned opposing counsel on the issue of the “reasonable offer,” they too did not have any record of any offers to settle being made by their client. They also didn’t have a rebuttal on the issue of the fees charged by our client being market value. The only response I received was the Defence was a boilerplate pleading that their firm uses to Defend.
The problem with this boilerplate Defence is that it failed to address any of the allegations in the Plaintiff’s Claim. This will raise issues as the matter proceeds through the Courts, which proceeds based upon the pleadings. What exactly are they defending if they do not address our allegations in the Plaintiff’s Claim?!
Many law firms use some form boilerplate or precedent when drafting a Claim or Defence, however, its only meant to be a guide, and is tweaked based upon the subject matter of the litigation. Making statements in a pleading unrelated to the issue(s) at hand isn’t productive and isn’t in the best interests of the client. I draft my pleadings the way I would proceed to Trial, which I have been recently advised by Deputy Judges is very much appreciated.
So, to confirm, the Defendant made no reasonable offers to our client that they failed to accept, and the fees charged by our client are indeed market value, all this despite the Defence pleading otherwise. Counsel also didn’t have settlement instructions, which was the point of the telephone call, rendering the call unproductive…like their Defence.
It’s important to take the time to properly draft your pleadings in accordance with the subject matter which would be addressed at Trial. This is your opportunity to make your case to the Court, and you’re not doing your client any favors using a boilerplate pleading that doesn’t address the issues.