How Little Things Can Turn Into Big Problems
When I was young, I tried to bake cookies on my own as a surprise for the rest of my family who was away for a few hours. I had yet to appreciate the difference between t and T as units of measurement and that baking soda and baking powder were two entirely different things. To this day my siblings still refer to those cookies as “clunkers” because they came out of the oven hard as a rock! You could have used them as driveway pavers. Now, one might ask “What in the world do clunkers have to do with the practice of law?” While the story itself doesn’t, the lesson learned that day does: little things often matter far more than you might realize. Consider the following scenarios:
1. A law firm picked up a significant corporate bankruptcy matter. Well into this representation, the responsible attorney instructed his competent long-time paralegal on how to disburse funds to a large group of unsecured creditors. He assumed that the paralegal understood the significance of the distinction between unsecured creditors whose claims were challenged and those whose claims were not. She didn’t and no money was held back to pay those whose claims were not challenged.
2. An attorney, who relied heavily on case management software, took on a plaintiff's personal injury matter. When these types of cases reached a certain point, it was this attorney’s practice to click a link in the program that enabled an automated litigation checklist function. This particular matter happened to stall just prior to the point in time that the link would normally have been clicked so the automated litigation checklist was never enabled. The attorney was oblivious as a critical filing deadline came and went.
3. Another attorney attempted to have computer-generated papers served on an individual at a personal residence. Service failed. The attorney investigated further, learned of, and verified an accurate work address for the individual and attempted to serve a second time. The papers were reprinted and sent out for service, unfortunately with the old address because the work address was never entered into the firm’s database, and no one double-checked the papers. Deadline ran.
4. A firm is the registered agent for a number of client businesses. Suit papers were received by the secretary and filed in the appropriate client file instead of being forwarded to the client because no one told her what to do in this situation. A default judgment was eventually entered against the client.
5. And finally, an attorney failed to timely record real estate closing documents. In the interim, liens against the former owner — but still owner of record — were placed on the property.
The above scenarios all arose as a result of a minor misstep and all resulted in malpractice claims against the firms in question. Think about it. One doesn’t normally view the failure to click on a specific link in a case management program as malpractice. Unfortunately, the fallout of not doing so can be. It’s also so easy to assume staff will always know what they’re to do, especially in regard to tasks that would seem obvious to any attorney. Yet, there will be times when a member of the staff may not even think to ask for clarification because they don't know what they don't know.
While I would love to be able to share a short list of practice tips designed to help you avoid these kinds of claims, that list would miss the point. It isn’t about trying to identify all the crazy ways a minor oversight might result in a claim. The point I am trying to make is that failing to appreciate that minor missteps can lead to major problems down the road is a serious misstep in and of itself. Remember my baking story above? Clunkers will happen. The best I can do is suggest you ask a few questions.
Start by thinking about your internal processes and procedures.
- Do you have a contingency plan should a minor misstep like a data entry error ever occur?
For example, if your firm relies on a software program to remind attorneys to take care of critical tasks, remember that the reliability of any information the program spits out will depend entirely upon the accuracy of the information that initially went in. If a critical deadline is never entered or is entered incorrectly, the program will fail you.
- What about document review?
Are all final work products reviewed for accuracy and completion? For example, if your firm uses a redaction software program to redact confidential information from a document, are all such documents reviewed to make sure everything that should have been redacted in fact was? If the answer to questions like these is no, I would suggest you consider revising your processes and procedures.
Also think about training and education for attorneys and staff to include periodic review sessions even with seasoned staff. You might start to ask questions along the lines of the following.
- Are staff members trained and able to identify and handle the exceptions to any given process or procedure if and when an exception arises?
- Do staff and attorneys utilize checklists with repetitive work and are these checklists designed to respond to the exceptions that will occur?
- Do you confirm that all instructions provided to staff and attorneys are actually understood and, perhaps just as important, do you invite questions that will give you the opportunity to address any issue or concern that’s raised?
Again, I have no concise list of cautions that can be posted on a sticky note somewhere. All I can share is that seemingly minor missteps can and do lead to trouble from time to time. I have tried to provide a few examples to underscore this point, to include my childhood baking fiasco: but here’s the rub. I had an acceptable excuse as a child trying to bake those cookies. I was young, inexperienced, and no one had yet taken the time to teach me the art of reading and following a recipe. As an educated and licensed attorney, however, imagine how a client might respond after learning that you allowed the statute of limitations date to run on their matter because you forgot to click on a link in your case management program? I suspect that my saying they would not view that explanation as an acceptable excuse and let it slide would be an understatement. So, stay sharp and don’t overlook the little things! The goal is no clunkers because they don’t go down well. You can trust me on that one.
Authored by: Mark Bassingthwaighte, Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.