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Avoiding Malpractice Claims

What Happens When an Attorney Makes a Mistake? Avoiding Statute of Limitations Malpractice.

Practicing law can be fraught with missteps. Some missteps have little to no impact on the ultimate result or quality of the services provided to a client. Others, meanwhile, can have a devastating impact on the client’s cause of action, and the attorney’s livelihood and reputation. While the standards of attorney professional conduct may change from jurisdiction to jurisdiction, attorneys generally are bound by similar obligations. A good rule to follow in any jurisdiction: Whether the misstep is small or large, upon discovery of the error, the attorney should admit it, communicate it, and rectify it both for the present and the future.

Attorney Errors

The American Bar Association recently published an article entitled The Biggest Malpractice RisksSubstantive errors accounted for more than 46 percent of the reported claims. Substantive errors revolve around the lawyer’s failure to understand the law and procedure of the client’s cause of action, including knowing and understanding the elements of the claim, the statute of limitations, and the like. Errors of this nature can impact the client and attorney in the most significant and devastating manner.

Substandard or inadequate office operations account for another large percentage of attorney mistakes, such as poor tickler systems, poor internal communication and delegation, and failed or non-existent checks and balances. Another significant area for attorney misstep is in client communications: failure to communicate properly and regularly to clients and failure to properly inform or obtain client consent. A relatively small percentage results from an attorney’s intentional act against a client. However, an attorney’s failure to properly admit and act on a misstep once it has occurred is intentional, and in itself can increase the level of severity of the matter — both in the harm to the client and the impact on the attorney.

Preventing Missteps

To avoid lack of understanding of the substantive law, attorneys need to educate themselves on the law they practice. They should take continuing legal education courses and attend conferences, keep up on current publications and trade journals, and talk with colleagues. Attorneys should be willing to mentor younger attorneys in their firms to share personal experiences and foster an environment of asking questions and learning from one another. Certain case management systems can also automate parameters surrounding case milestones so as to alert non-attorneys or newer attorneys to conditions that may require attention.

Here are five tips to help firms avoid and address the times when missteps happen:

1. Diligently create a culture that encourages employees to do the right thing, supports them to admit their mistakes, and includes transparency and open communication.

Firm members should feel compelled but safe in revealing any issues. The earlier an issue comes to light, the more swiftly and easily the firm can remedy it. Issues kept hidden will worsen and cause greater harm. That is not to say that consequences may not result depending on the nature and severity of the issue, but fear of undue retaliation or embarrassment should be minimized.

2. Adopt a firm philosophy that firm delays in managing a client’s matter are unacceptable, unless the delay with the client’s consent is tactically beneficial to the client.

Otherwise, moving the client’s matter forward in a timely fashion should be paramount.

3. Ensure firm procedures and policies demand regular and proactive client communication.

Ethical obligations imposed on attorneys require that they keep clients informed; beyond that, regular client communication keeps the firm up-to-date on the circumstances in a client’s case, helps manage client expectations, and helps uncover potential stumbling blocks. These factors play a large role in the smooth handling of a client’s case.

4. Expect and demand regular attorney file reviews.

Attorneys should routinely check the status of the client file to ensure the case is progressing as expected. So often, conditions that negatively impact a client’s case remain unnoticed, undiscovered, or ignored. Resulting harms can be avoided or mitigated with early detection and resolution. Consider also a requirement for the attorney to proactively make record of the review. For a personal injury case, the work-up might include: Case Type, Case Status, Case Age; Date of Incident; Statute of Limitations; Damages Summary; Carrier; and a Review of latest notes. An attorney acknowledgement of the review might also include instruction to staff on next steps.

5. Adopt a system of checks and balances.

Ensure that firm procedures, either manually or electronically via the firm’s case management system, adequately alert staff at appropriate case milestones. Checks and balances need to occur within the individual teams, as well as from a firm-wide approach. Ensure that attorneys appropriately and timely respond to staff questions. Ensure the case management system can alert management to broader case views, such as intake-to-case conversion rates, case milestones vis-a-vis case length, case resolution rates, and the like.

The Special Case of Statute of Limitations

Besides misappropriating funds in the firm’s trust account, missing a client’s statute of limitations date (SOL) in a case might be one of the worst mistakes an attorney can make. If one area of firm operations deserves extra care, it is this one: monitoring the firm’s statute of limitations. Unless it is the rare situation where the cause of action itself gives some flexibility with respect to this date, most of the time a client’s case is lost if the attorney fails to file suit or resolve the matter before that date. At that point, the client’s only recourse is against the attorney in a malpractice action. If circumstances warrant, the attorney may be disciplined, suspended, fined, disgorged of fees, or assessed with damages.

Firms are well-advised to put great care in managing and maintaining proper oversight on the statutes of limitations for its cases. In fact, because of their importance, some rules of professional responsibility, as well as professional liability insurers, require redundancy for tracking SOLs two separate and simultaneous tracking methods.

Tracking these dates is no easy feat. Each cause of action has a distinct method for calculating the date; each jurisdiction has its own statute; and different circumstances in different jurisdictions can impact the calculation of the date. So how should it be done? 

The Old School

Before the days of computerized case management systems, it was done with pen and paper lists or index cards. In fact, the old tickler systems were a variation of index cards and calendars. The index card system utilized a file box divided by year, month, and day. The firm created a series of cards for each case, including reminders in advance of the SOL date. The index cards were placed in the file box behind the corresponding year/month/day of the tickle date to review the file in advance of the SOL. Each day, staff checked the box to see what cases had reviews due. Additionally, firms used perpetual calendars and wrote in the appropriate reminders on the calendar date entry.

Digital Dating

Electronic or computerized systems advanced this process and simplified SOL reviews for firms. Such systems can easily and routinely produce lists of cases with SOL dates in a certain date range. However, scouring these lists often contain only a list of cases, and requires lengthy human review to determine the status of the case and the needed action. Firms can fine-tune their SOL reviews with a computerized system. First, they should analyze the desired results of the list itself (e.g., what list of cases will be produced) as well as what information will be included for each case. Second, they should consider the desired mode for communication of the deadlines (a printed list, an email alert, etc.).

Lastly, firms should consider additional and alternate modes of communicating SOL dates to the various roles. Printed case lists provide one mode but are somewhat limited. A reviewer cannot engage with the list; each case must be looked up in the corresponding case management system (or each physical file pulled). Electronic lists within computerized case management systems provide greater usability by incorporating electronic links (hyperlinks, for example) to the electronic case record.

Given the importance of SOL deadlines, multiple modes of communication and multiple methods to access SOL dates gives the maximum protection for firms. After all, attorneys not logged into the case management system might overlook a pending deadline. Regularly scheduled email alerts with pending SOL dates buttress other modes of communicating this information.

Stay tuned for the companion article to this Statute of Limitations discussion, coming next week. To schedule a demo and see what GrowPath’s next-generation legal tech can do for you, click here.

June 30, 2020