Everyone makes assumptions every day. As I see it, doing so allows each day to progress with some level of predictability and efficiency. Most days I assume my wife will return home for dinner at her usual time, all my tech will function problem free, and that if I need anything from anyone at the office they’ll be available. There’s nothing wrong with making such assumptions unless, of course, it turns out one of them is wrong and I am not prepared to deal with the consequences.
My guess is many attorneys would be surprised at the number of claims that are the result of a mistake that can be best described as the attorney was working under a false assumption. Think about a situation as simple as an attorney allowing her workload to grow beyond a reasonable level. Some won’t worry because they assume they will somehow find the time to get it all done while others may assume that someone else will be available to pitch in. But what if there really isn’t enough time to get it all done? What if no one else is available? What if the person who was asked to help out isn’t properly trained and doesn’t do the work correctly? Let me share two short stories based upon actual claims to further underscore the concern.
An attorney had a high volume real estate practice. He made a decision to assign all title search responsibilities, settlement package preparation responsibilities, and additional related administrative tasks to one staff person. The attorney assumed everything would be fine because there was no pushback on the amount of work assigned and this person was a trusted, devoted, and competent employee. This staff person, however, was one who also happened to feel unable to speak up for a number of reasons. It wasn’t long before she began to feel overwhelmed. She ended up in the weeds due to what had quickly become an excessive workload. The fallout was mistakes were made because the attorney’s assumptions proved to be incorrect and there was no safety net in place.
What could this attorney have done to avoid having a claim arise if and when an assumption proved incorrect? I would have advised him to develop a quality control process to assure that all completed settlement documents were reviewed for accuracy. After all, having all important legal documents of any type reviewed by a second set of eyes is always a good idea regardless of practice area. He might have also monitored the reasonableness of every employee’s workload or conducted periodic reviews of work in progress in order to stay abreast of how staff were doing day to day because some people are just unable to say stop, this is enough. Finally, he could have instituted a file review process. Obtaining a periodic status update on all active files is a great risk management tool in any practice. One caution with these ideas, however. Understand that the intent here is to have you approach the problem as looking for ways to maintain a quality work product. These processes should never be used as an excuse to start micromanaging the staff.
The second story is one that focuses on assumptions about attorney competency. It started with Attorney Smith who was in the process of retiring. He was fortunate in that another attorney, Attorney Wilson, had an interest in purchasing his practice. As a result of the eventual transfer of files, Wilson’s workload jumped literally overnight. Wilson made a decision to assume that all of Smith’s prior work was accurate and correct. Wilson also assumed that she would only be liable for the work she did on these new files and not for anything Smith might have done prior to her involvement. Both of her assumptions proved to be incorrect.
The problem here was that Wilson failed to consider the reasons that might be behind Smith’s decision to retire. What if Smith’s decision was due to his being burned out? What if in the final year or so leading up to his retirement Smith’s mental acuity had started to deteriorate? Wilson took no steps to be prepared to deal with any files that might have been neglected or mishandled. When Wilson decided to accept responsibility for Smith’s files, she also accepted accountability. From a liability perspective accountability for past work done by Smith may not be immediate, but it will come. These new clients will expect to be told of any problems in their file. As they see it, Wilson’s acceptance of responsibility for their files brought with it a responsibility to review those files. Wilson really should have conducted a thorough file review of all incoming files from Smith, even recently closed files.
The above two stories demonstrate the kinds of consequences that can arise due to working under assumptions without a plan should one turn out to be wrong. While more stories could be told, the point I am trying to make is this. In any busy practice, the temptation to assume all is well can be strong indeed. The new associate is settling in just fine. The network will never go down. Everyone is excited about and therefore using the new case management system. Again, this isn’t a problem as long as all assumptions made turn out to be correct. But as shared above, what if the new associate is actually struggling? What if a truck hits a pole and knocks out power so your network isn’t available for a last minute filing? What if a few attorneys and staff are using the new case management system incorrectly or not at all due to poor training? You see, life isn’t always neat and tidy. Some assumptions will turn out to be incorrect. It’s important to keep this in mind and periodically ask if any assumptions are in play. If there are, then the next step is to figure out what to do about it should they not hold true. Leave them alone and the false ones will bite at some point. As I see it, that’s just a matter of time.
As a Risk Manager for 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 content 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 contacted at: firstname.lastname@example.org