Vol. 81, No. 9, September
Avoiding Common Malpractice Mistakes
Some of the most frequently made
mistakes leading to malpractice claims are also the most
by Thomas J. Watson
Practicing law should be very rewarding. You are in a position to
resolve their problems, you can make a decent living, and you can find
challenges almost every day.
As almost every lawyer will tell you, though, deadlines,
difficult clients, and
overwork due to a heavy caseload can make for some stressful days. These
cause mistakes that sometimes lead to an Office of Lawyer Regulation
grievance or a
There isn't one right way to be a lawyer. It is called the
"practice of law" for
a reason. As a lawyer, you're looking for the best strategy and the best
each client. There are plenty of obstacles to finding the "best
fit" that even the most
experienced and skilled lawyers sometimes have difficulty avoiding.
Many lawyers firmly believe they'll never have to worry about a
grievance or a
claim. But mistakes are made even by the most experienced lawyers, and
every lawyer faces
challenges keeping every client happy. Sally Anderson, vice president -
Wisconsin Lawyers Mutual Insurance Co. (WILMIC), Madison, says,
"Sometimes lawyers don't know
how close they came to a malpractice claim - nothing triggered the
problem so it
remained undiscovered, or the client didn't pursue the issue, either
because the client
really liked the attorney or didn't want to spend the time or money
pursuing it. I believe
you could go into any law office and find a potential problem. It may be
small, it may
be large, but it's often something that was simply overlooked."
While mistakes can occur with little or no warning,
understanding the most
common mistakes lawyers make and where the risks are can help you avoid
those mistakes and
risks and reduce the chances of a malpractice claim being made.
Who's Making the Mistakes
Malpractice claims happen to all types of attorneys in all different
age groups and
stages of practice. However, there are trends. According to statistics
WILMIC over the past 23 years:
- Newer lawyers are the objects of malpractice claims at a much
lower rate than
more experienced lawyers. Ten percent of WILMIC claims were made
against lawyers in
their first five years of practice, compared to 30 percent against
lawyers who had been
in practice 10 to 20 years.
- "Dabbling" is very risky. Approximately half of all
claims involve areas of
practice in which the lawyers against whom the claims were made
practiced less than 10 percent
of the time.
- The riskiest areas of practice, in terms of numbers of claims
plaintiffs' personal injury; real estate; business organization;
estate, trust, and probate;
bankruptcy and collections; and family law.
Most Common Mistakes
The type of error committed by lawyers is tracked in several basic
"Failure to know the law or properly apply it" is the cause of
the highest percentage of
malpractice claims, accounting for nearly 15 percent of all claims.
Anderson says, "One
reason this happens is the law is so broad. Lawyers sometimes don't take
the time to
check, thinking an answer is needed immediately. The problem is they
don't know what they
In addition, the law is ever-changing. Court interpretation
changes the law, and Congress and the Wisconsin
Legislature enact new laws every year. Keeping up with those changes
takes time and effort.
Thomas J. Watson, Marquette 2002, is senior
vice president and director of communications at Wisconsin Lawyers
Mutual Insurance Co., Madison. Watson will review common malpractice
pitfalls at the Solo & Small Firm Conference, Oct. 23-25.
"Planning errors in choice of procedure" is the second most
common type of
mistake. These top two error types are substantive errors that can be
avoided with diligence
and skillful, experienced lawyering. "Knowing the law isn't
enough," Anderson says.
"Lawyers have to be skilled in identifying the right issue and
framing the question. If you
don't properly quantify your client's problem or correctly frame the
issue, you won't be
able to identify the right solution. You may know the law well and
handle the case
without error, but ultimately, without the proper framing of the issue,
you could end up
hurting your client in the long run."
Anderson says sometimes a lawyer runs into problems by simply
doing what the
client asks. "The lawyer may set up a trust or prepare a land
contract, just as the client
requested, but neglect to consider tax implications, or some other
ancillary issue that
the client may not have thought of, but as the `expert,' the lawyer
considered. Doing what the client asks is fine, but if the client
doesn't know enough to ask
about other options, a lawyer needs to try to explain the benefits and
why it's often best to start by identifying the client's goals. Knowing
client wants to be - and why - can help avoid a myriad of
A good engagement letter can help avoid these problems, too.
client's goals in writing can allow the client and the lawyer to
discover other issues that
need to be addressed. The letter also should make clear what the lawyer
believes needs to
be done to accomplish the defined goals.
The third most common mistake is "inadequate discovery and
lawyers have had clients who don't want them to spend too much time on
the case in an effort
to save on fees. Or a complete and thorough investigation is not done
because the lawyer
is too busy and trusts the client to provide all the information needed
for the case.
This can lead to serious problems down the road, both for the client and
the lawyer. If
you're willing to take a case, be committed enough to do it well,
and verifying the facts. If you can't make that commitment, strongly
consider not taking
Client Communication and Calendaring
Most of the remaining categories of mistakes can be combined into two
that lawyers cannot ignore. They are administrative procedures,
and client communications. If a lawyer falls short in either of these
two areas, the risk
of a malpractice claim soars.
Administrative and calendaring errors such as "failing to
react in a timely manner
to your calendar," "failing to know or ascertain the correct
deadline," "failing to
calendar properly," and "procrastination" combine to make
up roughly 25 percent of all
WILMIC claims. Client communication errors such as "failing to
obtain a client's
consent," "failing to inform the client," and
"failing to follow a client's instructions"
account for another 12 percent of WILMIC claims. Added together, these
mistakes account for
nearly 40 percent of WILMIC's claims.
Clearly then, administrative procedures and client communication
are two of the
most important areas to which a lawyer should pay close attention, not
combined they account for the highest percentage of claims, but also
because these types of
claims are the easiest to prevent. Anderson's rules of lawyering are,
communicate, communicate. If your office procedure includes a good
calendaring system with
appropriate redundancy, excellent client communications, and file
management, you will greatly
reduce or even eliminate a significant amount of risk. Great client
are the best insulation a lawyer has from claims and grievances."
Avoiding communication breakdowns means writing letters, making
phone calls, and
making sure clients understand what you tell them. "It's matching
expectations with reality, and making sure those expectations line up
with the lawyer's
expectations," Anderson says. "That's when you have great
The good news for lawyers is that many of these mistakes are
avoidable with the
proper amount of attention. Anderson says missed deadlines generally
result from human error
or procedural flaws. Shoring up your administrative procedures, working
continuously improve your client communication skills, researching the
law, and making sure you
thoroughly investigate your clients' cases, as well as judiciously
selecting the right
clients for you, can greatly help in avoiding claims or grievances.
While you can't and shouldn't spend all your time worrying about
Anderson says you should at least be aware of ways to avoid them.
"I want lawyers to think
about it but not be paralyzed by it," she says. "It does take
some wisdom and common sense
to practice law - being smart isn't enough."