Wisconsin Lawyer
Vol. 81, No. 9, September 2008

Managing Risk

Avoiding Common Malpractice Mistakes

by Thomas J. Watson

Practicing law should be very rewarding. You are in a position to help people resolve their problems, you can make a decent living, and you can find intellectual challenges almost every day.

As almost every lawyer will tell you, though, deadlines, difficult clients, and overwork due to a heavy caseload can make for some stressful days. These pressures can cause mistakes that sometimes lead to an Office of Lawyer Regulation grievance or a malpractice claim.

There isn't one right way to be a lawyer. It is called the "practice of law" for a reason. As a lawyer, you're looking for the best strategy and the best solution for each client. There are plenty of obstacles to finding the "best fit" that even the most experienced and skilled lawyers sometimes have difficulty avoiding.

Many lawyers firmly believe they'll never have to worry about a grievance or a claim. But mistakes are made even by the most experienced lawyers, and every lawyer faces challenges keeping every client happy. Sally Anderson, vice president - claims for Wisconsin Lawyers Mutual Insurance Co. (WILMIC), Madison, says, "Sometimes lawyers don't know how close they came to a malpractice claim - nothing triggered the problem so it remained undiscovered, or the client didn't pursue the issue, either because the client really liked the attorney or didn't want to spend the time or money pursuing it. I believe you could go into any law office and find a potential problem. It may be small, it may be large, but it's often something that was simply overlooked."

While mistakes can occur with little or no warning, understanding the most common mistakes lawyers make and where the risks are can help you avoid those mistakes and risks and reduce the chances of a malpractice claim being made.

Who's Making the Mistakes

Malpractice claims happen to all types of attorneys in all different age groups and stages of practice. However, there are trends. According to statistics compiled by WILMIC over the past 23 years:

• Newer lawyers are the objects of malpractice claims at a much lower rate than more experienced lawyers. Ten percent of WILMIC claims were made against lawyers in their first five years of practice, compared to 30 percent against lawyers who had been in practice 10 to 20 years.
• "Dabbling" is very risky. Approximately half of all claims involve areas of practice in which the lawyers against whom the claims were made practiced less than 10 percent of the time.
• The riskiest areas of practice, in terms of numbers of claims made, are plaintiffs' personal injury; real estate; business organization; estate, trust, and probate; bankruptcy and collections; and family law.

Most Common Mistakes

The type of error committed by lawyers is tracked in several basic categories. "Failure to know the law or properly apply it" is the cause of the highest percentage of malpractice claims, accounting for nearly 15 percent of all claims. Anderson says, "One reason this happens is the law is so broad. Lawyers sometimes don't take the time to check, thinking an answer is needed immediately. The problem is they don't know what they don't know."

In addition, the law is ever-changing. Court interpretation changes the law, and Congress and the Wisconsin Legislature enact new laws every year. Keeping up with those changes takes time and effort.

Thomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison. Watson will review common malpractice pitfalls at the Solo & Small Firm Conference, Oct. 23-25.

"Planning errors in choice of procedure" is the second most common type of mistake. These top two error types are substantive errors that can be avoided with diligence and skillful, experienced lawyering. "Knowing the law isn't enough," Anderson says. "Lawyers have to be skilled in identifying the right issue and framing the question. If you don't properly quantify your client's problem or correctly frame the issue, you won't be able to identify the right solution. You may know the law well and handle the case without error, but ultimately, without the proper framing of the issue, you could end up hurting your client in the long run."

Anderson says sometimes a lawyer runs into problems by simply doing what the client asks. "The lawyer may set up a trust or prepare a land contract, just as the client requested, but neglect to consider tax implications, or some other ancillary issue that the client may not have thought of, but as the `expert,' the lawyer should have considered. Doing what the client asks is fine, but if the client doesn't know enough to ask about other options, a lawyer needs to try to explain the benefits and drawbacks. That's why it's often best to start by identifying the client's goals. Knowing where the client wants to be - and why - can help avoid a myriad of problems."

A good engagement letter can help avoid these problems, too. Identifying the client's goals in writing can allow the client and the lawyer to discover other issues that need to be addressed. The letter also should make clear what the lawyer believes needs to be done to accomplish the defined goals.

The third most common mistake is "inadequate discovery and investigation." All lawyers have had clients who don't want them to spend too much time on the case in an effort to save on fees. Or a complete and thorough investigation is not done because the lawyer is too busy and trusts the client to provide all the information needed for the case. This can lead to serious problems down the road, both for the client and the lawyer. If you're willing to take a case, be committed enough to do it well, including investigating and verifying the facts. If you can't make that commitment, strongly consider not taking the case.

Client Communication and Calendaring

Most of the remaining categories of mistakes can be combined into two general areas that lawyers cannot ignore. They are administrative procedures, including calendaring, and client communications. If a lawyer falls short in either of these two areas, the risk of a malpractice claim soars.

Administrative and calendaring errors such as "failing to react in a timely manner to your calendar," "failing to know or ascertain the correct deadline," "failing to calendar properly," and "procrastination" combine to make up roughly 25 percent of all WILMIC claims. Client communication errors such as "failing to obtain a client's consent," "failing to inform the client," and "failing to follow a client's instructions" account for another 12 percent of WILMIC claims. Added together, these mistakes account for nearly 40 percent of WILMIC's claims.

Clearly then, administrative procedures and client communication are two of the most important areas to which a lawyer should pay close attention, not only because combined they account for the highest percentage of claims, but also because these types of claims are the easiest to prevent. Anderson's rules of lawyering are, "Communicate, communicate, communicate. If your office procedure includes a good calendaring system with appropriate redundancy, excellent client communications, and file management, you will greatly reduce or even eliminate a significant amount of risk. Great client communication practices are the best insulation a lawyer has from claims and grievances."

Avoiding communication breakdowns means writing letters, making phone calls, and making sure clients understand what you tell them. "It's matching up client expectations with reality, and making sure those expectations line up with the lawyer's expectations," Anderson says. "That's when you have great communication."

Conclusion

The good news for lawyers is that many of these mistakes are avoidable with the proper amount of attention. Anderson says missed deadlines generally result from human error or procedural flaws. Shoring up your administrative procedures, working to continuously improve your client communication skills, researching the law, and making sure you thoroughly investigate your clients' cases, as well as judiciously selecting the right clients for you, can greatly help in avoiding claims or grievances.

While you can't and shouldn't spend all your time worrying about mistakes, Anderson says you should at least be aware of ways to avoid them. "I want lawyers to think about it but not be paralyzed by it," she says. "It does take some wisdom and common sense to practice law - being smart isn't enough."

Wisconsin Lawyer