Years ago a commercial that Wendy’s aired became a personal favorite and I still get a chuckle out of it to this day. An elderly and somewhat curmudgeonly woman with cohorts in tow enters a burger joint. She buys a burger, lifts up the top bun, and upon seeing a tiny little burger patty promptly exclaims “Where’s the beef?” The employees working at that burger joint served puny burgers on huge buns with a side of cavalier attitude and the message was clear. While there was no quality control at that burger joint, rest assured that at Wendy’s there was. You would always get a big meaty burger served on a big tasty bun. That ad was a homerun.
So what does an old Wendy’s commercial have to do with the practice of law? I sometimes ask lawyers during a risk visit “What are your quality control processes?” and when I do, the response is often one of blank stares. Now I am not going to debate whether the practice of law is a business or a profession; but let me say that if a firm starts to have problems when it comes to delivering a promised product or service in a timely and responsible fashion, the attorneys practicing there shouldn’t be surprised when their client base starts to drop off. Clients will be responding to the poor service by thinking things along the lines of “Where’s the beef?” and they will take their business elsewhere.
With all this in mind, let me share two ideas that can help lawyers keep a handle on quality control. The first, and in my mind most important, would be to establish a formal file review process which seeks to ensure that any legal work accepted by any firm attorney will be completed in a timely and thorough manner. In the absence of such a process, how would you know if there’s a file sitting in someone’s file drawer or note to open a new matter that happens to be buried under a mountain of papers that is about to be forgotten about? Are you absolutely certain that no matter accepted by any firm attorney will ever end up overlooked? This is the issue and the fact that everyone has a busy practice is not an acceptable excuse to try and justify a decision to not move in this direction.
My intent is to encourage the establishment of a process if one is not already in place because the lack of file review has and will continue to lead to claims within our profession. While there is no one right way to conduct file review, let me share two basic approaches in order to demonstrate the kind of things malpractice carriers look for.
First, consider instituting a strict policy that provides that no active file can be filed away by anyone without a future date in the calendar or tickler system. If no other date is already in the calendar or tickler system within the next 30 to 45 days on any given file, place a file review date into the calendar or tickler system for 30 to 45 days out. This will ensure that every file is touched on a regular basis. Many case management systems are designed to do this automatically and these programs allow you to set the frequency with which you wish to conduct file review. The key to having this work is that all matters regardless of the size or type must be entered into the system. Thus even flat fee in-and-out work such as a simple will or a small business formation as well as that legal favor for a friend or extended family member must have a date entered into the system because losses have been paid as a result of attorneys forgetting to follow-up on some perceived minor matters and their clients were harmed as a result.
An alternative approach is to develop a list of active matters that each attorney is responsible for. Sometimes this can be accomplished by printing out a list of active files for each attorney from your time and billing program. Be careful however, because a number of time and billing packages will not automatically print out the names of files that have had no work done on them during the most recent billing period and that information is exactly what you want to capture.
Once these lists are created, each attorney will need to be responsible for his or her own list. In short, they simply need to place a check by each specific matter that they touch every time a file first comes across their desk during the review cycle. If a new file is opened the attorney will add that matter and client name to his or her list. If a file is closed, that matter and name can be crossed off the list. At the end of each review period, a few matters may be unchecked and these are the files that should be located and reviewed. The goal is to ensure that every file is touched at least once during every review period. A designated staff member is often responsible for updating and providing clean copies of all attorney lists at the beginning of each review period. Finally, some attorneys will go one-step further on their unchecked matters and place a call or send a letter to the client even if nothing is happening. Clients tend to appreciate the brief update and this could help limit the number of incoming calls from clients who may begin to fear that things have stalled after there has been no contact for a period of time. I can also report that I have been in firms where file review is so valued that no paycheck will be cut for any attorney, regardless of seniority, who has not completed their file review for a particular the period. These firms value the process that much.
The other quality control process that I would have you consider is peer review. While not something I often see, this really can be an effective method of continuing to improve your firm’s ability to provide outstanding customer service. Here is one way to conduct peer review. Basically every attorney at your firm is going to have two or three closed files randomly selected for review by a committee or another attorney at the firm on an annual basis. Please understand that this is not a process meant to train the associates. All attorneys in the firm regardless of seniority should be participating. The review should focus on the entire course of representation. Look for documentation of the client decision making process with an eye toward verifying that all communications with the client were professional, effective, and thorough. Look for compliance with the firm’s calendaring guidelines and that a proper conflicts check occurred. There should be an engagement letter that clearly documents scope of representation and a letter of closure that confirms the end of representation on that specific matter. Review for timeliness of work, work product presentation, billing decisions, and procedural choices. If a file being reviewed is not up to firm standards, simply focus on group education intended to reinforce the whys behind whatever process or procedure that wasn’t up to snuff. The real purpose is not to look for mistakes and chastise, but to identify ways that representation can be improved in order to provide higher quality representation to the next client. In other words, this isn’t meant to be a process that just looks for missteps and shortcomings. In fact if you discover that something worked particularly well, a new form or document was developed that could be standardized, or someone came up with a new way of doing something that led to greater efficiency share that new found intellectual capital throughout the firm so other clients may benefit.
A peer review discussion can be incorporated into a monthly meeting of attorneys, perhaps over a lunch hour or at a Monday morning meeting where coffee and a light breakfast is served. The attorney or attorneys being reviewed should rotate month to month so that every member of the firm is reviewed and also conducts a review at least once a year. Few risk reduction practices cover such a broad range of concerns as well as peer review.
There are certainly a number of other quality control procedures that a firm could implement but the two processes outlined here capture the essence of it. File review seeks to prevent a matter from falling through the cracks and peer review seeks to ensure compliance with firm standards as well as drive the continued professional development of all firm attorneys. Granted, outside of a picnic thrown for long-term clients, it is unlikely that you’ll ever hear a client utter the words “Where’s the beef.” With effective quality control processes in place, however, you hopefully also won’t ever hear something along the lines of “How the heck did that happen.”