When I was young I tried to bake cookies on my own as a surprise for the rest of the family who were away for a few hours. Suffice it to say that I had yet to appreciate the difference between t and T as units of measurement or that baking soda and baking powder were two entirely different things. To this day my siblings still refer to those cookies as “clunkers.” You could have repaired a cobblestone street with those things and we still laugh about it. Now, one might ask “What in the world do clunkers have to do with the practice of law?” While the cookies themselves don’t, the lesson learned that day does and the lesson learned was that little things often matter far more than we might realize.
Allow me to draw a few parallels. A law firm picked up a significant corporate bankruptcy matter. Well into this representation, the responsible attorney instructed his competent long-time paralegal on how to disburse funds to a large group of unsecured creditors. He assumed that the paralegal understood the significance of the distinction between unsecured creditors whose claims were challenged and those whose claims were not. She didn’t and no money was held back to pay those whose claims were not challenged.
An attorney, who relied heavily on case management software, took on a plaintiff personal injury matter. When these types of cases reached a certain point, it was this attorney’s practice to click a link in the program that enabled an automated litigation checklist function. This particular matter happened to stall just prior to the point in time that said link would normally have been clicked so the automated litigation checklist was never enabled. Attorney was oblivious as a critical filing deadline came and went.
Attorney attempted to have computer generated papers served on an individual at a personal residence. Service failed. Attorney investigated further, learned of and verified an accurate work address for the individual and attempted to serve a second time. The papers were reprinted and sent out for service, unfortunately with the old address because the work address was never entered into the firm’s database. Deadline ran.
Firm is the registered agent for a number of client businesses. Suit papers were received by the secretary and filed in the appropriate client file instead of being forwarded to the client. Default judgment was eventually entered against the client.
Attorney failed to timely record real estate closing documents. In the interim liens against the former owner, but still owner of record, were placed on the property.
Claims along these lines are rather common and all resulted from what at the time could be perhaps best described as a relatively minor misstep. After all, one doesn’t normally view the failure to click on a specific link in the case management program as malpractice. It is the consequence that matters. By the same token, it’s so easy to rationalize that once a real estate sale has been finalized it doesn’t really matter if the papers get filed this week or next. Unless of course that by the time next week rolls around this particular task is forgotten.
Little things do matter. While I would love to be able to share a short list of practice tips designed to help one avoid these kinds of claims, such a list would miss the point. It isn’t about trying to identify all the crazy ways a minor oversight might result in a claim. The point that I am trying to make is that failing to appreciate that minor missteps can lead to major problems down the road is a serious misstep in and of itself. Clunkers do happen. If baking were that easy, everyone would be good at it.
So, think about how you use your systems. If you rely on software programs to remind you to take care of critical tasks, remember that the information out is only going to be as good as the information that went in. If no date was ever entered or one was entered incorrectly, the system will fail you. What is your contingency plan if and when a minor misstep, like data not being properly entered, occurs? In a similar vein, do you review all final work products for accuracy and completion? For example, if you use a redaction software program to redact private information from a document, would you review said document to make certain that everything that should have been redacted in fact was?
Think about training and education for attorneys and staff to include periodic reviews with even seasoned staff. While I do have a strong tax background, it does take time for me to come up to speed each year around tax time. I simply don’t prepare enough tax returns year after year to stay sharp. Given this, I start to ask questions like are all staff members trained to identify and handle the exceptions to any given procedure if and when they arise? Do staff and attorneys utilize checklists with repetitive work and are such checklists designed to respond to the exceptions that will occur? Do you confirm that the instructions provided are actually understood and, perhaps just as important, do you invite questions that will enable you to clarify any issue or concern that’s identified?
Again, I have no short list of cautions for you or practice tips that can be posted on a sticky note somewhere. All that I can share is that seemingly minor missteps can and do lead to trouble from time to time and I can provide a few examples to underscore the point. I had an acceptable excuse as a child trying to bake cookies. I was young, inexperienced, and no one had yet taken the time to teach me the art of reading and following a recipe. As an educated and licensed attorney, however, imagine how a client might respond after learning that you allowed the statute of limitations date to run on their matter because you forgot to click on a link in your case management program? I suspect that to say they would not view your explanation as an acceptable excuse and let it slide would be an understatement. Stay sharp folks and don’t overlook the little things. The goal is no clunkers. They don’t go down well. Trust me on that one.
As a Risk Manager with ALPS, Mark Bassingthwaighte, Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be reached at: email@example.com.