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    Wisconsin Lawyer
    December 01, 2012

    Managing Risk: 6 Law Practice Resolutions

    Now is a good time to take stock of your work and then commit to techniques that will protect you and your clients from unexpected hazards.

    Thomas J. Watson

    new year 2013

    Many people make New Year’s resolutions around this time of year. If you are one of the many, I encourage you to consider some resolutions for next year that might help your law practice. If you stick to them, you might find in 2013 that you are a more competent lawyer, you serve your clients better, and maybe, just maybe, you are happier and more fulfilled in your professional life. That’s quite a build-up, I know. I hope I’m not overpromising. So let’s consider these six resolutions for 2013.

    1) Do Not Overpromise

    Speaking of overpromising, it’s a good topic for the first resolution. In the risk-management world, overpromising is referred to as “puffery,” and it can result in unrealistic client expectations. Resolve not to do it next year. Overpromising to a client often leads to disappointment. Madison attorney Janice Wexler says that keeping your clients informed, including being realistic with them about the possible outcome of their case, is the best way to go. “If they made an informed choice to take a risk that, in the end, didn’t pan out, they’re generally less upset than if they had no idea it could turn out the way it did.”

    Being realistic with clients might not guarantee client satisfaction in every case, but it certainly increases the odds. Managing client expectations starts at the very beginning of your representation, but it doesn’t end there. Sally Anderson, vice president of claims at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), says there are several things you can do throughout a representation to help keep your client informed and avoid unrealistic expectations.

    First, demystify the legal process at the first meeting. Anderson says, “Find out what your client expects from you and explain what you expect from your client. Walk through the process as best you can with your client indicating possible outcomes.”

    Second, be responsive. “Answer client phone calls, letters, and emails. If clients feel ignored, they will be unhappy with their lawyer, regardless of the quality of the legal work,” Anderson says.

    Third, keep your client informed of the progress of his or her case. Anderson suggests, “Even if there is nothing new to report, it can’t hurt to tell your client that.” Lawyers should also discuss with their clients how developments affect their case. “You may encounter new facts or changed circumstances,” says Anderson. “That may mean modifying the scope of your representation.”

    6 Resolutions for 2013

    1) Do not overpromise.

    2) Pick the right clients.

    3) Maintain a good calendaring system.

    4) Avoid the scammers.

    5) Prepare a disaster recovery plan.

    6) Maintain a good work-life balance. 

    2) Pick the Right Clients

    Client selection is a mixture of art and science. You know which practice areas are your strengths, and perhaps you focus on cases in those areas. You also generally can tell if a potential client is someone with whom you’d rather not work. But sometimes, it’s not quite so clear. Every lawyer has “client-from-hell” stories. You get involved in a case that sounds good or at least fairly benign at the outset but ends up keeping you up at night. How do you avoid those circumstances?

    As Anderson likes to say, “No” is a complete sentence. She says there are times when you simply must turn away business. “Lawyers need to believe they can say ‘no’ and the phone will ring again. It doesn’t take long after it’s too late to learn that this was a client you should not have taken.”

    For newer, younger lawyers, becoming comfortable with declining potential clients is not easy. “When I was a new lawyer, I wanted to help every client who called, whether their case was viable or not,” says Milwaukee-area attorney Kelly Centofanti. “I learned early on, thanks to my mentor, that if we try to help every client and sink our practice, we will never be able to help anyone. Over the years, that advice, coupled with time pressures, has helped me to ‘just say no’ to the iffy cases or the problematic client.”

    Anderson sums it up: “If I had a nickel for every time I heard one of our policyholders involved in a claim say ‘I knew I never should have taken that case,’ I’d be a rich woman.”

    Be selective. Watch for the warning signs, including the following: 1) you are not the person’s first lawyer; 2) you want to take the case for financial reasons; 3) you lack expertise in the practice area; 4) the person has unrealistic expectations and doesn’t want to listen to you; 5) you are already overworked; and, 6) you don’t know enough about the case.

    Anderson says, “The best way for you to control your practice, rather than allowing it to control you, depends on your ability to accept cases and clients that are right for you, and to build the confidence to nicely say no to those who are not.”

    3) Maintain a Good Calendaring System

    Calendaring may be something many lawyers take for granted, but failing to calendar properly, failing to keep track of your calendar, missing deadlines, and procrastinating collectively account for nearly one-fourth of all malpractice claims against WILMIC policyholders. Anderson says missed deadlines are most notable in personal injury cases. “More than 35 percent of all personal injury malpractice claims that we receive involve missed deadlines. It’s a major source of claims. Missing the statute of limitation is the most common mistake, but other deadlines and procrastination can cause problems, too.”

    Why do lawyers miss statutes-of-limitation deadlines? Anderson says there are many reasons. “Practicing out of jurisdiction has caused some confusion over what the deadline is. So can changing laws, or a misunderstanding of the dates given to you by the client. Handling claims involving municipalities, the state of Wisconsin, or individuals employed by federal, state, or local governments creates challenges with unforgiving notice deadlines. Clerical errors and procrastination are at the root of many of the missed deadlines we see.”

    Too many lawyers get burned by calendaring errors. Consider implementing one or more of the following:

    • Setting up a computerized or manual calendar system and synchronizing your calendar with your assistant’s calendar;
    • Providing staff members with access to your calendar, especially if you are out of the office;
    • Installing a good computer-backup system;
    • Setting up warnings in your calendar on dates before ultimate deadlines to give you ample time to complete the work that must be done;
    • Following up to check whether the work was actually completed;
    • Routinely entering on your calendar dates for important matters such as court appearances, procedural deadlines (such as statutes of limitation and discovery), client-imposed deadlines, billing dates, and absences from the office; and
    • Training everyone in your office to use the calendaring system.

    4) Avoid the Scammers

    Sounds easy, doesn’t it? During the past few years, I have written several times about various scams and frauds targeting lawyers. Unfortunately, the scams are still out there. On occasion, some lawyers have let their guard down and been victimized.

    Lawyers all over the United States (including in Wisconsin), Canada, and other countries are still being targeted. Typically, lawyers receive email messages from prospective “clients” whose goal is only to trick the lawyers into transmitting funds to the message senders. Lawyers are often targets because they are vulnerable: they are trained to help all callers and subject to rules of confidentiality.

    Why have some lawyers fallen victim to these scams? Anderson says several policyholders she has spoken to were wrestling with whether they were being approached by a scammer or a real client, and believed they could not ignore a client request.

    Anderson cautions that if you get an inquiry you’re not sure about, and you don’t want to simply ignore it, there are several things to consider. “Why does the ‘client’ need to have the funds run through you? Is there any logical connection that would have brought the person to your firm? Have you done any ‘work’ for the ‘client’ or did a check just magically appear? Why do they need a wire transfer? If you are just a clearinghouse, be extra wary.”

    5) Prepare a Disaster Recovery Plan

    I wrote about disaster preparedness recently, but my advice bears repeating. We all saw the devastation caused on the east coast by Hurricane Sandy and the damage earlier this year caused by a fire at a Madison office building that housed 12 law offices. Planning now can save you from interrupted client services, missed deadlines, and lengthy office downtime. Any of these can result in losing clients, losing money, or being sued for malpractice.

    Anticipate the possibilities. Even if weather-related destruction in your locale seems very unlikely, there are other business interruptions you must consider. You or a law partner could have a serious illness and miss work for weeks or even months. Your computer system could crash. What if you lost crucial files? Could you recover them?

    If you were not able to operate your practice for even a short time, the results of that downtime could be devastating. They include:

    • loss of income and clients,
    • loss of potential income and potential clients,
    • lost productivity and idle employee costs,
    • unanticipated business expenses,
    • missed deadlines and appointments, and
    • malpractice claims.

    There are several key elements to a business continuation plan. They include protecting your electronic data as well as your paper files. Establish information-backup procedures and test them regularly. You don’t want to discover in the wake of a disaster that your data-backup system is faulty.

    To protect paper files, you should take several steps before your business is interrupted. Define and identify vital records: those that are essential for your business to continue operating. Scan active files and store the copies off site. You can store paper files in your office, but keep them in locked metal cabinets that are off the floor, away from potential flooding.

    Make plans for what to do in the event telephone service is unavailable. Choose a specific location at which you and your employees will meet if your office becomes inaccessible. In addition, put together a directory of employees’ current home addresses, phone numbers, and emergency contacts and keep it in a place that is accessible in an emergency. If possible, arrange for an alternative work site so that you can continue operating if you cannot get into your building.

    Don’t forget to review your property insurance coverage. Does your policy cover building contents as well as the structure? Do you have business-interruption and extra-expense coverage? Do you need coverage for water damage?

    6) Maintain a Good Work-Life Balance

    Working hard is important in any endeavor. But there is something to be said for spending time with family and friends, refocusing, and recharging your batteries. Although the adage about “burning the candle at both ends” might seem old-fashioned, it’s as important to keep in mind now as it was for our 19th- and 20th-century predecessors

    Many law firms are moving to more flexible scheduling. This includes minimum-billable-hours’ goals that allow attorneys to take time off when their case schedules allow, as well as accommodations for lawyers to work from home.

    Thomas J. WatsonThomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison;

    Promoting work-life balance in your law firm and among your associates, or even for yourself, especially if you’re a solo practitioner, makes some sense. But can a lawyer working as a solo afford a day or more away from the office? Yes. It may sometimes be worth it in the long run to give up some billable time.

    Anderson says there are many different causes for malpractice claims against lawyers, but a common cause is the following: an overworked lawyer overlooking something that could have prevented the error in the first place.

    “A common theme behind many of the claims we have observed at WILMIC is the client’s belief that his or her case was not important to their lawyer. When talking about the claim, the lawyer will often admit to us that the client’s case ‘fell through the cracks.’ Many lawyers are starting to see the value of taking a day to just organize their files, update their to-do list, or simply get away to rest and come back reenergized.”


    So there you have it – a list of six New Year’s resolutions from which to choose to help make your life as a lawyer in 2013 a little better. They may not be as attractive as promises to take your spouse on a cruise, lose 25 pounds, or call your parents a little more often. You can do those things, too. But making and sticking to these resolutions will result in your practice feeling a little more secure and your sleep being more sound in the upcoming year (and these things might give you the energy to lose those pounds or go on that fun-filled vacation you’ve been dreaming about).

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