And the survey says . . .

/ 06.Jun, 2012

In memory of the late Richard Dawson, we present a compilation of lists of legal malpractice errors.  Most, like the American Bar Association’s, have calendaring issues as the number one cause of malpractice.  There is a reason for this, calendaring issues, and missed deadlines are the number one cause of legal malpractice actions, representing more than one third of all cases.  Other lists, such as these presented to the Kentucky Bar, include some practical advice about screening (my favorites are on the list on page 20 from the President of Wisconsin Lawyers Mutual Insurance Company, including: “What your client heard matters more than what you said.  Corollary: Nobody remembers what anyone said.”).  On the flip side of the coin, here is a list for clients avoiding legal malpractice by their lawyers.  This list, most closely resembles the advice I give when lecturing on malpractice avoidance.  Finally, below is a list the Jeff McCarron, Kathy Carson and I came up with several years ago:

Five big tips
  • Managing expectations
    • Communicate enough information for clients to make informed decision
    • Not just “anything can happen” or “the jury may disregard the law” but why.
      • Always relate analysis back to legal concepts
    • If there is a problem, let the client know
      • ie: there is a good chance you will lose because. . .
  • Document in writing
    • Let clients know of problems in writing
      • need to provide sufficient information to know how to act
        • Client- know when and how to resolve the case
        • Company- know what reserves to set
      • If things are not going to get better- let the client know that, and why, and what to do.
  • (For defense counsel only) Client is the insured
    • As a general rule all communications going to company should go to client.
      • Don’t report to company that client is bad witness without letting the client know as well.
    • Must act in the interest of the insured.
      • Can act for insurer only as long as interest of insurer does not conflict
    • Must communicate settlement offers to insured so they can object- even if insurance contract says insurer has absolute right to settle- it then becomes problem of insurer
  • Know and understand the rules
    • This is a rule and statute based profession.
      • Know the rules of the court you are in
        • Pennsylvania is perverse- Just because it worked one place, does not mean it will work somewhere else
  • Preserve your issues!
    • In pleadings
    • At trial
  • Do not rely on support staff without independent verification
    • If something has to be filed make sure you can verify that it was filed before the applicable deadline
    • “I gave it to secretary or copy room” not acceptable”
    • If not filed in a timely fashion address it.
      • Don’t just hope court will ignore untimeliness
        • File motion- and explain why not filed timely
Josh J.T. Byrne, Esquire