Becoming an attorney is not easy. There’s always a lot of schooling, followed by a period of intense and rigorous studying to pass a bar exam. Fortunately, attorneys as a whole are highly intelligent, hardworking and perfection-oriented people.
But regardless of how skilled attorneys are, they will occasionally make mistakes, just like anybody else. Some mistakes — like pleading errors or forgetting to answer a paragraph in a complaint — are easily fixable. In such instances, judges will usually allow you to file an amended answer.
Other mistakes are more severe and can lead to substantial monetary loss and damage to your reputation. According to an article published in 2018, the average severity of malpractice suits seems to represent a rising trend. And it’s in times like these that law firms need to prepare for the future.
These are what my litigation professor called the “unpardonable sins,” and they can end up costing your firm more than just your reputation. They include:
- Missing the statute of limitations
- Not making reasonable efforts to effect service of process
- Ignoring requests for admissions
- Not filing a timely notice of appeal
These errors are so egregious that they often result in a client suing their counsel for malpractice.
Falling into the malpractice arena can happen faster than you think. In addition to the four listed above, there is a litany of ways an unwary attorney can find themselves on the business end of a malpractice suit. A not at all-encompassing list includes:
- Not applying the law correctly to a client’s situation
- Breaching your fiduciary duty
- Failing to calendar the filing of documents and court appearances
- Losing files, documents or evidence
- Ignoring or not contacting your client
- Not working on a client’s case
- Disobeying client instructions
- Not checking for conflicts-of-interest
- Breaking the law or lying to the court
- Agreeing to a settlement without your client’s permission
- Using a client’s retainer for something other than the client’s case
The mistakes that constitute malpractice may seem dangerously easy to commit, but it’s usually a bit more complicated than that. Legal malpractice only occurs when the attorney handles a case inappropriately due to negligence or with intent to harm and cause damages to the client.
So, proving an instance of malpractice requires a client to show four things:
- The existence of an attorney-client relationship
- That the attorney was negligent in their duty to provide skillful and competent representation
- That negligence was the cause of losing their case
- That losing the case resulted in a financial loss to the client
Although there are almost as many ways to commit malpractice as there are attorneys, most lawyers who earn a malpractice suit are utterly surprised by it. They are legal professionals who are doing their best to uphold their fiduciary duties, but even smart people make mistakes.
And that is why most malpractice suits arise from three root causes:
Inexperience in a New Practice Area
It is common for attorneys just starting out — especially solo-practitioners — to take on all cases brought their way. Unfortunately, accepting cases outside of an attorney’s practice area can quickly lead to trouble.
I recently retained an attorney whose background in oil and gas litigation is not strong. However, I felt comfortable hiring him because he has a mentor with more than twenty years of experience in the field. They meet regularly to discuss cases and strategies.
Remember your client’s case is not the time for you to learn a new and interesting practice area. Your job is to help your client navigate a complicated legal system, not build out a new skill set for yourself.
An Over-worked Schedule
When something absolutely needs doing, my rule is to have a busy person do it. This is especially true with attorneys because, in my experience, busy attorneys are usually successful attorneys.
In the push to be successful, it is easy for attorneys to find themselves carrying a heavy workload. While everyone overworks periodically, doing so for too long will leave one feeling stressed, and struggling to find time and energy to devote to their cases.
I learned this lesson when hiring an attorney who openly admitted his caseload was “pretty heavy.” Unfortunately, it was so heavy that he failed to answer a complaint, and the company had to pony up $40,000 on an injury case that was entirely the plaintiff’s fault.
Failing to Properly Evaluate a Signed Case
There is nothing worse than jumping into a suit only to realize that you seriously underestimated the complexity of the work — or, that you’ve overestimated your abilities.
Last year I hired a small-town attorney to handle what should have been a rather simple real estate issue. Two months and 40+ billable hours later, when questioned about the lack of progress on the issue, he sheepishly admitted he was in over his head. I was able to find another attorney who completed the deal. Unfortunately, I broke my budget to hire her.
The processes and details involved in each of these areas may seem daunting. But lucky for us, avoiding malpractice is as simple as doing the opposite of these three primary causes — something made infinitely more possible with the right case management software.
Inexperience – Never take on cases in practice areas you know nothing about. If you are a personal injury lawyer with little to no experience in tax law, avoid tax cases. There’s no shame in telling a potential client that you cannot handle their case. Conversely, it shows them you are honest, and may even bring work back from the same client in the future.
But who to refer to? Especially for new attorneys, making the connections necessary to facilitate strong referrals can be a difficult task. Even experienced firms may struggle to maintain good referral relationships.
But with resources like Filevine’s Referral Network, you have access to a rich selection of legal professionals all over the country. Putting a potential referral up for review is as easy as sending an email. And because all members of the network are using the same unified case management solution, transferring case details is as easy and secure as technologically possible.
Over-work – One interesting aspect of practicing law is that attorneys can quickly learn who is capable, and who is not. Moreover, word travels fast and far, and it’s better to have a reputation as an attorney who handles a few cases well than a lot of cases poorly.
Your client is paying you to give their case the professional service and attention it deserves. So, avoid caseloads that exceed your bandwidth, slow down, be thorough and never take shortcuts.
The best and simplest way to stay on top of a heavy caseload is with effective case management software that enables you to plot and track each step of a case while maintaining better communication with team members and clients.
Automatic Taskflows can guide your team through a proven process on every case, yielding a higher average case value and faster turn-around times. Another useful feature provided by the right software is Audit Reports, which can greatly help in identifying your team’s best performers and worse detractors. Other powerful tools include Automatic Hashtags, which can reduce stress and decrease the need for organizational work.
Careful Case Evaluation – The simplest way to evaluate a potential case is to compare it to your previous or existing cases.
Tracking and comparing expenses with previous cases enables you to decide if a potential suit is worth your time and money. Tools like Filevine Fusion allow you to create comprehensive firm admin documents that make comparisons like this easy and convenient.
Be honest with yourself and take the time needed to carefully estimate the hours necessary to manage a potential case, as well as the complexity of the issues involved. Because no two legal issues are exactly alike, and no one knows everything, there are times when you need some outside help to solve certain aspects of representation.
Using case management software to build and schedule firm-wide reports can be an important step in making evaluations like these possible. But if you ever find yourself at the mercy of Google, typing in desperate search term after a desperate search term to no avail, it’s probably best to just refer the case to a more experienced attorney.
Defending yourself from a malpractice claim is expensive in both time and money. Losing a malpractice suit is even worse, especially when it comes to your reputation. But fortunately — with the proper care and attention given to existing and potential cases — it is an experience easily avoided.