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The newsletter of the ISBA’s Young Lawyers Division

February 2016, vol. 60, no. 4

Avoiding legal malpractice claims

In order to learn how to practice law, one must actually practice. Young lawyers can – and will – make many mistakes along the way. Even meritless claims can burden you and your firm with both financial and emotional costs. This article will highlight common mistakes young lawyers make that may result in malpractice claims, most of which are easily correctable and amount to nothing more than a good learning experience.

1. Maintain a dependable and accurate calendaring system.

A reliable, organized calendaring system is critical to meeting deadlines and prioritizing multiple obligations. Failing to properly calendar events and key dates can lead to missed deadlines and other disasters. Young lawyers tend to rely upon senior team members, or their paraprofessional staff or administrative assistants, to calculate and calendar deadlines. It is imperative that young lawyers take responsibility to confirm all dates and deadlines placed on their calendar, and/or maintaining your own personal calendar as a back-up to your firm’s or practice groups calendaring system.

2. Accountability extends to meeting the deadlines too

Even if properly calendared, young lawyers must be mindful of and meet all deadlines. The consequence of not taking timely legal action can be drastic. You do not want to learn the lesson of respecting deadlines the hard way. Claiming insufficient or poor supervision from a supervising attorney is not excuse if you miss a deadline. Also, young attorneys must allow ample time and opportunity for the assigning attorney or client to review the draft, edit it, and explain what additional work needs to be done, all while accounting for their busy schedules. You should not cut things too close, and do not presume that the client or assigning attorney will have time to process your work product the day it is due or even the day before it is due. Because the law is a service profession, many times you will have to do things when the client wants them done or in compliance with a court ordered deadline, even if it is inconvenient for you. Ask your supervising attorney for his or her due date to be safe.

3. Don’t JUST rely on senior attorneys

Striking a balance between taking initiative versus deferring to your senior team members is tough. You don’t want to over-rely on senior attorneys for instruction, guidance, assignments, projects, proofreading, etc. If you are assigned to a case, you should presume that you are responsible for all deadlines and events on the calendar. Inquire in advance of an upcoming event whether and how you can be of assistance. Also, don’t assume that the senior attorney’s knowledge of the rules is so superior to yours that you don’t need to look at the rules personally. In many cases, the senior attorney may have no better understanding of the actual court or procedural rule than the beginning attorney. The senior attorney often relies upon the beginning attorney, without actually saying so, to make sure that they are fully complying with all applicable rules. Always check the rules! Don’t presume that the assigning attorney or more senior member of the team has assured compliance with the rules.

4. Effective client communication

Poor evaluation of a case, or inadequate communication with a client can result in the client’s surprise at the outcome of a case. Both errors may lead to disbelief by the client, which would be most unfortunate, but it is possible that the misjudgment with respect to strategy or exposure could be judged far more harshly by the client than a failure to accurately report developments in the case. Indeed, a client may be more willing to forgive a surprising result if all efforts by the lawyer were conducted in the manner expected by the client; however, poor reporting which denied the client an opportunity to evaluate the risk before damages were realized will likely be judged more harshly. The consequences of a mistake may vary based on the professionalism displayed by the lawyer.

5. Failure to appreciate gravity of professional responsibility

While many young lawyers desire work/life balance, you must appreciate the gravity of the professional responsibility you undertook when becoming a lawyer. Being a professional in some respects means being “on call” at all times. Timely completing legal projects does not always fit neatly between the hours of 9:00am - 5:00pm, Monday through Friday excluding holidays and other major life events. Young lawyers who fail to appreciate this may be in for a rude awakening. While this may not lead to malpractice claims, it may lead to a quick end of your employment!

Your reputation begins to build on the first day of law school and continues to grow (or decline) throughout your entire career. Your reputation will be comprised of your skill, talent, personality, integrity, ethical standards, imagination, judgment and diligence. You want to be regarded as reliable, intelligent, diligent, practical, talented and trustworthy. If you make the mistakes outlined above, they will become part of your reputation and will be difficult to overcome. Many attorneys have survived making these mistakes, but that is no excuse for repeating them.

David Neiman is a Council Member of the Young Lawyer’s Division. He is a trial lawyer with Baizer Kolar PC that dedicates his practice exclusively to representing victims and their families in personal injury and wrongful death matters arising out of medical malpractice, auto and trucking collisions, airplane crashes, and other catastrophic accidents.