Wisconsin Lawyer
Vol. 80, No. 9, September 2007

Misused Time Management Systems Create Risk

by Thomas J. Watson

The rapid evolution of technology has had a great impact on the practice of law. Today, most offices are almost entirely computerized, with software programs for just about any task a lawyer or staff member may encounter. Case management and timekeeping programs, Excel spreadsheets, email, cell phones, and other modern-day technologies have made it easier to practice law in the office, on the road, and in the courtroom. We are near the point where lawyers can practice law out of the office almost as efficiently as in the office.

While these innovations are, by anyone's measure, great tools for a law practice, lawyers must be aware of their dangers. If the tools are not used properly or are accompanied by sloppy record-keeping, a malpractice claim can be just around the corner.

Do Not Procrastinate

Of all the malpractice claims against lawyers insured by Wisconsin Lawyers Mutual Insurance Company (WILMIC), almost one in five are a result of administrative errors. Those include procrastinating, failing to calendar events properly, failing to timely act on a calendared event, making clerical errors, failing to file documents on time, and even losing files. Nationally, between 2000 and 2005, malpractice claims due to administrative errors increased 12 percent, according to the American Bar Association.

Brian Anderson, WILMIC claims counsel, says whether an attorney has a good administrative system or a bad one, the first thing lawyers must do is make sure they are proactive. "We see malpractice claims time and again from attorneys who take a case but wait to investigate, pursue the case or file an action, or simply take a case late in the game and run into deadline issues." He says the first problem attorneys run into if they don't act promptly is missing filing deadlines. This can be caused by simple oversight, waiting for supporting records, naming or serving the wrong party without enough time to amend, or finding out it's too late when special circumstances arise. Simply put, "good things do not come to attorneys who wait," says Anderson.

Garbage In, Garbage Out

Whatever scheduling and administrative system exists in a lawyer's office, it is only as good as the people who operate it. Anderson says he has seen claims that can be traced directly back to incorrect data entered into a law firm's system. "Lawyers should take the time periodically to perform an independent review or an audit of their files to verify the accuracy of the data entered into their system." He says he is currently working on a claim in which a staff person in charge of a firm's data entry diary and tickler system decided it was no longer necessary to enter all of the client files and stopped using that part of the system. "This only highlights the fact that staff turnover, morale, and overall competency and consistency are just as important as the computer system a lawyer is using."

Managing the Paperwork

Even with technology in law offices, lawyers still have a mountain of paperwork and files to keep organized. The paperless office is still a long way off.

All of a lawyer's documents should find a home. Anderson says lawyers too often leave documents in a pile on a desk or elsewhere. "Claims have come in for missed deadlines or missed statutes of limitation and in the end, it was a matter of misplaced paperwork that could have prevented a mistake." He says there are ways to avoid those errors. "It sounds obvious, but sometimes lawyers get busy, especially those with a small office or small staff, and papers and files get misplaced and forgotten. For pleadings that require a response, have a tickler system in place so that you do not miss a deadline. The calendar entries should be made in your computer system immediately after receiving the document."

Electronic Lawyering

Among the most popular case management and time management software systems are Time Matters and Amicus Attorney. Both systems work well, depending on what lawyers need the systems to do for them. Many firms have had these systems in place for five years or longer.

Madison attorney Gerry Mowris says his firm has used Time Matters for eight years. The firm implemented Time Matters to get "double calendaring" abilities and also to get palm pilot compatibility from outside the office. It's a system that is working. "We have backup so all files are replaceable. It also really helps us with using and accessing files."

Mowris says his office, like most law offices, generates less paper than it did 10 years ago, relying more on electronic records. That's good, he says, but it also means he has to devote more time to the electronic demands on his practice. "The impact of email has caused a one-hour period each day in which I have to review and respond. While this is good, in some ways, it is sometimes overwhelming."

Overall, Mowris likes the advantages of email. However, "when I am gone and return to 300 emails, it is hard to see the time saving, but it is nice for last-minute communication and for communicating with multiple clients, especially the military clients that I have overseas."

Mowris even used an instant messaging system during a trial. "It allowed me to get feedback from a client during testimony of other witnesses. It was like having the client sitting next to me."

The amount and nature of email communication sometimes cause mistakes that can lead to malpractice claims. Email communication often can be misinterpreted, and Anderson says WILMIC has the claims to prove it. "Because more than 90 percent of communication is nonverbal, including body language and tone of voice, it's no surprise that emails are often misunderstood." Anderson encourages lawyers to have a standard system in place to keep a record of emails.

Metadata

It also is sometimes faster, easier, and more efficient to use modern technology to provide documents to clients or opposing counsel. By emailing documents, you save time and money. But using email also carries risks.

Metadata is a hidden level of extra information that is automatically created and embedded in a computer file. Metadata may be stored in documents created in all versions of Word, Excel, and Powerpoint. As a result, if a lawyer sends a Word document attached to an email, that lawyer runs the risk of exposing the metadata to the person receiving the document. The information contained in the metadata could reveal earlier versions of the document, the amount of time spent on the document, and more. If the document is a negotiating tool, revealing changes could compromise the attorney's negotiating strategy and position. Mowris says he has sent documents, but only to someone he trusts. "And I generally send something as a pdf so that an earlier document is not accessed."

The Future

As fast as technology is developing, law firms are likely to find faster and more efficient ways to use it - for calendaring, billing, case management, and communicating with clients, opposing counsel, the courts, and others. With those newfound methods come new dangers for lawyers.

Mowris says every time his firm upgrades to a better system, there are bugs that need to be worked out. "It seems we have trouble getting things reestablished so that the different devices will mesh." One example was trying to discover if his system was compatible with a BlackBerry^TM device. "It took 10 phone calls to many different sources to get an answer. In the future, I'd like to see more integration of systems and more user-friendliness for us."

With young attorneys entering the legal profession each year, most of whom are technologically savvy, and the court system's increased use of technology, time management systems and the way lawyers practice will continue to evolve. As lawyers rely more on technology, the risk of malpractice will increase. Lawyers are wise to continue to audit their time management and practice systems to keep up with the changes. As Anderson cautions, "Make a hard copy file review and regular auditing of your time management system crucial components of your firm's risk management efforts."

Wisconsin Lawyer