WILMIC News & Risk Management Articles

Top 10 Ways Lawyers Can Manage Their Practice and Avoid Malpractice Claims

1. Stop Lying To Your Calendar About Who Is In Charge Of Your Life

Over twenty percent of all claims and twenty-seven percent of all claim dollars result from calendaring errors, including missed deadlines, often because lawyers don’t calendar enough time for the “unexpected.” When was the last time you had a day without the “unexpected?” Calendar as though something bad will happen.

Allow for time to fix mistakes. Allow more time to get it done than you think necessary. You might even consider including it in someone else’s calendar in the office so you have some back-up if you need it.

2. “No” Is A Complete Sentence

Our claims attorneys often hear the refrain, “I knew I shouldn’t have taken that case.” Facing real people in real crises makes it difficult to always make the right decision about which cases to choose. And turning away business is never easy. Solo practitioners and small firms often feel they cannot be choosy about the clients they select.

Don’t take cases strictly for financial reasons. It can be tempting to take everything that comes in the door. A high number of malpractice claims are directly related to this problem. Don’t be afraid to refer a case if you do not have the required expertise.

3. If You Don’t Like Your Client, You Better Love Your Carrier

You will always have your least favorite clients and they are the ones you don’t want to deal with. So you won’t. These are the matters where you will fail to properly communicate, miss deadlines, and make bad choices. Unfortunately, all of those things may lead to a much higher risk of a malpractice claim.

4. Conflicts of Interest Aggravate Everyone

You can get clients to waive potential conflicts, but judges generally aren’t impressed with conflict waivers, especially if the lawyer got paid by both sides. In addition, clients may recall waiving a potential conflict, but they inevitably say they didn’t understand what that meant.

For solo practitioners in their early years of practice, it may seem unnecessary because they may be able to name all their clients. But, as the years pass, the importance of conflict checks increases as lawyers may simply forget the little cases here and there that they have done.

5. Your Client Already Knows How This is Going to Turn Out

Someone who “knows everything” and just wants you to carry out their wishes rarely, if ever, makes for a good client. This is the client who doesn’t listen attentively and goes into denial when the discussion turns to potential weaknesses in the case. It’s a major warning sign if a potential client tells you they “know the law” or they were “told the law” by several other lawyers.

Ultimately, it is important to tell a client that you cannot promise them an outcome. Throughout the representation, be sure to inform the client of the risks that are involved.

6. Never Give Bad News to a Hungry Client

When a client first comes to you, their problem is BIG. That is the time to tell them that it will take time and money to fix that problem, and that our legal system requires compromise. As you learn about new problems along the way, tell your client about them early and often.

These are excellent moments to test their expectations: Let the client read the bad report from the expert and explain it to you. You will know how much correction the current expectation will require.

7. You Have to Let Your Client Make Dumb Choices

Clients will sometimes do the wrong thing, not spend enough money to do the right thing, and occasionally tell you not to worry about the important thing. They have a right to do all of these things. Hindsight will often show them they were wrong. Usually hindsight is too late. Therefore, protect yourself. Make sure you told them what the right thing was. Say it AND write it. Give them enough information to enable them to make the choices that belong to them.

8. What Your Client Heard Matters More Than What You Said

We all hear what we want to hear. You say, “You might win; it is not likely to cost an unreasonable amount of your money; it will happen as quickly as our system allows; I’m hoping you will be satisfied when it’s over.” Your client heard, “You will win; it won’t cost any of your money; it will happen quickly; you will be happy when it’s over.”

Always put your advice in writing, even if you’re sure the client understood it when you said it. They probably did. But what they remember is what they wanted to hear, not necessarily what you said.

9. When They Smile and Nod, Your Client is Not Understanding or Agreeing with You

We all want uncomfortable situations to pass quickly. Clients are usually uncomfortable in your office because they couldn’t solve their problem on their own, they don’t believe they should have the problem at all, it’s not their fault to begin with, and they don’t like that they have to pay you to solve it.

Never mistake smiling and nodding as anything other than an indication of discomfort. Say the important stuff loudly, with ordinary words, and put it in writing!

10. They May Call It “Practice,” But They’re Just Kidding

The standard of care is not perfection, but you have to be really good. You aren’t really good all the time – nobody is. Be careful about holding yourself out as a ‘specialist.’ Then you have to be extraordinarily good all the time in that specialty.

Even if you say you’re an average lawyer (and who does that?), you still have to be really good all the time. One good rule of thumb: taking on a “bad” client is more problematic than having no client or not enough clients.