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CLAIMS CORNER - Even “Good Lawyers” Have Claims

Claims DepartmentMany times policyholders, defense counsel or lawyers we meet tell us, “You should insure (fill in the name of a colleague). They are a great lawyer and would be a great risk.” That kind of endorsement is meaningful and the reputation is often well deserved. In fact we usually try to proceed with the referral whenever we can. When we receive the applications and have some insurance experience we learn it does not always follow that good lawyers do not have claims.

Let’s start with what we hear when someone says that a colleague or adversary is a “good lawyer.” First, they are sharp. They understand the issues and can articulate them on behalf of the client. They do their homework, be it fact-finding or legal research and are prepared to argue their case. Advocacy comes naturally to them and clients’ interests are noticeably furthered by their efforts. Good lawyers are courteous and ethical. They follow the rules and give others the benefit of the doubt, whenever possible. Perhaps the best test of a good lawyer is to say that they are someone you would be happy joining or opposing in a case, because you know they will be competent and reasonable as well as intellectually competitive.

Let’s compare that with those conditions that foster claims. While it is very true that claims are made against the not-so professional lawyers, those who cut corners, fail to follow the procedures and are otherwise not partner candidates, many if not most come from hard working lawyers that at least some other members of the profession think are “good lawyers.”

Good lawyers can be very competent and still be sued for substantive mistakes such as failure to know the law, failure to know the deadline, improper advice and the like. What we find is that often lawyers are overwhelmed or out of their area of expertise in giving advice or interpreting the law. They want to help the client and that altruistic desire coupled with a lack of time to prepare yields an unexpected result, leaving an unhappy client seeking a better resolution. Very good and well rated attorneys sometimes allow their assistants to set the deadline dates, particularly when the statutes of limitation or repose will run. Without checking the dates set in the calendar, cases that involve out of state actions, claims against protected classes of defendants or certain torts may well be mis-calendared due to failure of the staff to know that special statutory provisions may apply. Good lawyers can miss the office details. Claims result.

We also have to keep in mind that when we see a good lawyer it is in the context of professional advocacy or project completion. Good lawyers draft argument-winning briefs and cause witnesses to admit facts that win a case. They create an estate plan that is state-of-the-art and a model for others. They know the latest legal development in their area and can cite the case or statute from memory. When clients evaluate a lawyer it has much more to do with “desk side manner.” Clients want to know what is happening and cannot evaluate what they cannot see or appreciate. It is easy to do the greatest job humanly possible for a client and have them fail to appreciate that because they were not prepared for all outcomes, privy to what was done, or updated on the progress throughout the case. Perhaps it was explained sufficiently for any lawyer to understand, but they aren’t lawyers and they missed it. Virtually all claims begin with a client dissatisfaction or misperception.

Allow us to highlight two thoughts. When we think of those we believe to be “good lawyers” we should factor in the client point of view. After all, it is the result obtained for the customer that makes the service. Secondly, good lawyers can have claims. It does not make them bad lawyers. In preventing claims, though, it pays to be careful and attend to the little things more than it pays to “be good.”

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