Preventing SOL Malpractice

How Statute of Limitations Software Helps

Editor’s Note: This is a companion piece to Avoiding Malpractice Claims

Practicing law can be fraught with many dangers, but the best mistakes are relatively minor and easily managed. Sometimes, however, errors result in a malpractice suit against the offending attorney. For those unfamiliar with slipping up, some common mistakes by attorneys include filing suit in the wrong jurisdiction or contract drafting oversights. And then there’s the deadlines imposed by statute of limitations regulations. Missing one of these and having a promising suit dismissed can leave an attorney open to significant discipline and civil liability.

Of course, when it comes to professional slip-ups, the best strategy is prevention. But we’ll get to that later.

Covering Up Calamity

According to Brian Pollock in his article for Litigation Magazine, lawyers must resist the urge to cover up their mistake. A lawyer has potential obligations to both her client and her insurance carrier, and silence may be a shirking of both of those obligations. As for the former, the Model Rules of Professional Conduct lay out the attorney’s obligation to keep her clients reasonably informed about their cases. This certainly encompasses the aftermath of an impactful mistake by legal counsel. While some jurisdictions allow the attorney to reveal the developments without pinpointing themselves as the culprit for the error, the majority requires greater forthrightness. The Restatement (Third) of the Law Governing Lawyers requires the attorney to act in contravention to their own interests. Meaning, informing the client that he or she may have a viable malpractice claim.

Despite this, attorneys occasionally compound their initial mistake by trying to avoid responsibility. Needless to say, state disciplinary boards do not look kindly on this tactic. Pollock mentions numerous illustrating cases. One involves a Columbus attorney who avoided his client’s calls and letters for two years after failing to prosecute her action. The Ohio Supreme Court ultimately imposed a six-month suspension.

Malpractice Claims

A negligence claim against an attorney is often combined with a breach of fiduciary duty claim. While this may seem redundant, some courts require a less stringent causation standard for a breach claim than a negligence claim. The initial error falls under a negligence analysis. However, any subsequent cover-up could result in an additional and easier-to-establish breach of fiduciary duty claim.

Pollock notes that the improper handling of a mistake can expose the negligent attorney to additional damages apart from the initial incident. These include punitive damages and damages for emotional distress. In some states, punitive damages mean significant personal exposure for the attorney. In addition, the statute of limitations for malpractice suits can be extended due to the attorney or firm’s attempts to evade responsibility. Finally, while a negligence claim cannot move forward without evidence of damage to the wronged party, a conflict of interest or breach of fiduciary duty claim without monetary damages can still result in fee forfeiture.

The attorney also has a responsibility to his or her insurance carrier. Failure to report that error can result in loss of liability protection. If an attorney reasonably believes that a malpractice claim is possible based on an error they’ve committed, insurance policies typically impose a reporting obligation. This obligation generally arises at the point of a suit’s dismissal resulting from the attorney’s error.

Being Proactive

First, do not exacerbate and compound an initial error by failing to communicate or by covering up your mistakes. Second, embrace cutting-edge technology to more nimbly and effectively handle deadlines and case milestones. Humans make mistakes, so incorporate safeguards offered by technological solutions, including the functionality of legal case management software.

Legal case management software solutions abound; however, solutions built by industry leaders do not. Select your software wisely, as your practice’s financial success and reputation depend on it. Unfortunately, many practice management platforms provide only rudimentary solutions, especially as regards SOL management. Some platforms overwhelm users with irrelevant and premature reminders. As such, important things can still fall through the cracks.

What can GrowPath’s statute of limitations functionality do for you?

GrowPath allows firms to manage Statutes of Limitations from many angles. You can customize and limit the records you retrieve by SOL. Or, you can combine options like SOL deadline, case type, case feature, and much more:

• SOL dates can be set and automatically generated according to the type of matter;
• Users can be prompted with a series of case-specific reminders;
• Users can be prompted by highly-customizable and tailored lists of cases;
• Different users in different roles can be prompted with data that is pertinent to their roles.

As an example, personal injury litigation attorneys may want to view a list of all trucking accident cases that do not yet have a complaint filed but have their 3-year SOL date in the next 18 months. In contrast, pre-litigation attorneys may be satisfied with a 9-month advance warning, and may want to filter out cases involving plaintiffs who are minors. Alternatively, managers may want to review all cases in which the SOL date occurs in the next month, as a form of checks and balances.

Because of the customized filters applied to the SOL lists presented, users do not have to go into each individual case to determine the nature of the case or confirm the looming SOL.

Additionally, GrowPath offers in-app alerts and email alerts, as well as ad hoc SOL searching. Overall, GrowPath’s logic engine and filters keep your focus fine-tuned on the most pressing matters specific to you. Bonus Benefit! With data narrowed by deadline and other qualifiers, you can export an SOL report for a big picture view. Choose the best time for a vacation or staff outing by previewing and scheduling around heavy deadline periods.

Isn’t It Time to Go GrowPath?

There’s so much on your plate…don’t get blindsided by missed deadlines. At GrowPath, our mission statement is to help clients get an edge on the market through an unrelenting pace of innovation. Schedule your demo today to see SOL filters in action! Let us show you how next-generation legal tech can help you avoid disaster and achieve unparalleled success.