Widely reported today is the news that law firm Withers has just lost £1.6m ($2.6m) because of a “misremembered” phone call, a call that was not recorded.

Remember Guy Hands? He lost billions because he could not prove what was said in three phone calls.  Again, calls that were not recorded.

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Seriously, how many times do people need to be told? Tape your phone calls now.

Withers is my alma mater, the firm that took me on to do my training, back when it was called “articles” and where I qualified and started work. We were not the highest tech firm, but certainly not the most backwards.

But over 20 years on, they cling on, as most law firms do, to a quaint instrument called an “Attendance Note”. Originally designed as a note of a meeting, post Alexander Graham Bell, it expanded to include notes of telephone conversations or, as one partner explained to the naive young lawyer that I was, it contains a contemporaneous note of what we wish had been said in a phone conversation. Trust me:  Compare the attendance notes of two lawyers on different ends of the phone, and see if you think they were on the same planet, let alone the same call.

And in part, this is one of the reasons why lawyers resist telephone recording (trust me, I’ve tried to persuade a few) – You’ve been to meetings: The person who writes the minutes is the person who really controls the meeting – Attendance notes are very similar.

The poor Withers assistant who is at the heart of this case (and who is very unpopular with Withers’ insurers) either made an attendance note, but didn’t note the instructions correctly, or made no note at all, but in any “misremembered” an important part of one particular call such that he made one of the more expensive drafting errors of recent times.  The point is, if a recording had been attached to the client file, the case might never have come to court.

The technology to route a phone recording to the correct client file is a matter of workflow, and all firms now employ workflow and document management to one degree or another.  Speech to text technology allows you to get a “good enough” transcript so that if you need to glance through the file to see what was said, you can do that in the same way as an attendance note.  You don’t even have to attach every call to a file, just keep the ones you want, and allow the rest to auto-delete after a period of time.

My job, in part, is to sell to law firms the technology required to help their clients manage audio data when it comes to litigation.  It doesn’t look good from an advisory perspective when your own “recording” practices are put in the spotlight, and found sadly wanting.  My number is on our contact page – But be warned:  We record our calls.


PS it is worth noting that Withers are intending to appeal – But win or lose, they should have recorded that call…

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