Is malpractice litigation unavoidable? Only if you ignore the warnings

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Published on 4/10/06

Every lawyer, even the most competent and conscientious, faces the risk of a malpractice lawsuit. Often we seem to accept this as an unavoidable aspect of practice. But the truth is that there are certain red flags that indicate a greater risk of your being sued.

Beware the practice

Personal injury litigation practice accounts for about one-third of all malpractice claims. Add the related area of medical-malpractice claims and the percentage is even higher.

The reasons for that are simple. If the personal injury lawyer misses or misreads the applicable statute, the liability is clear-cut and irrevocable. And if the attorney misses the statute, the client can always claim, with 20-20 hindsight, "The jury would have given us a big award." The single most important protection for the attorney against such a claim is to document everything that goes into the analysis and communication process - every letter, every staff contact, every phone call. If you can demonstrate that you were on top of things, the client can't prove otherwise.

Beware the client

Clients who should be suspect as prospective sources of malpractice litigation can often be identified when discussing the engagement letter. Think twice about clients who:

  • will not discuss or agree on fees, or will not sign a fee agreement or pay a retainer;
  • insist that their matter is "life and death"; such clients will often be future sources of last-minute emergencies that at best are irritating and at worst can result in errors under pressure;
  • use pressure tactics to urge that their matter be handled first once the engagement begins;
  • demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; or
  • cannot articulate what they want you to achieve.

Beware the process

The time savings and efficiency afforded by computers and other electronic technology have freed the great majority of lawyers to focus on the creative, problem-solving aspects of their law practices. I have long believed that the lawyer who does not use at least the minimum amount of technology may be committing malpractice per se.

One of the Rules of Professional Conduct requires that a lawyer be competent to handle a given matter. And one criterion for competency is the standard of care in the local community. When you face lawyers who are significantly more sophisticated in the use of technology, that is the standard of care against which you are measured.

If you don't use technology effectively for research, file management and the like, you may be perceived as willfully less competent than your competitors. And that's malpractice.

Beware the misunderstanding

A recent study contended that doctors talk three minutes longer with their patients (clients) than other professionals (lawyers), and that doctors are sued less than lawyers. The study called this extra communication "marketing" that lowered the risk of malpractice.

Probably far-fetched. But it is true that the focus of the conversation between a professional and a client/patient/customer must be to understand the intent and desires and wants of the client. Only then can you shape your assessment. If the two are in harmony, and you inform the client (so the client understands clearly) what to expect, there is little likelihood of a malpractice claim.