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    Wisconsin Lawyer
    March 01, 2014

    Managing Risk
    An Ounce of Prevention: Examine Administrative Processes Now

    Even lawyers with tight schedules will reduce their malpractice risk by taking the time to ensure that they and staff members are effectively using the most appropriate practice-management software and technologies for their practices.

    Thomas J. Watson

    hazard suitThe practice of law appears to be evolving faster now than at almost any other time in history. Clients’ needs and demands are changing. They are sometimes looking to nonlawyers for some services that used to be the sole domain of lawyers. The structure of law firms continues to evolve. But the biggest impact on the practice of law in the past decade or so has been made by technology.

    Most offices are nearly entirely computerized, with software programs for just about any task a lawyer or staff person might encounter. Case management and timekeeping programs, email, smartphones, laptops, mobile tablets and other technologies have made it easier to practice law in and out of the office, on the road, and in the courtroom. The legal profession is seeing the advent of the “virtual” lawyer who practices anywhere he or she can take his or her laptop rather than out of a bricks-and-mortar office space.

    While all these innovations are, by anyone’s measure, great tools for a law practice, lawyers must be aware of the dangers. If they are not used properly, a malpractice claim could be just around the corner.

    Do Not Procrastinate

    Almost one of every five claims against lawyers insured by Wisconsin Lawyers Mutual Insurance Co. (WILMIC) is a result of administrative errors. Those include procrastinating, failing to calendar events properly, failing to take timely action on a scheduled event, making clerical errors, failing to file documents on time, and even losing files.

    Sally Anderson, vice president-claims at WILMIC, 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 against attorneys who take a case but wait to investigate, pursue the case or file an action, or simply take on a case too late in the game and run into deadline issues.”

    Attorneys might miss deadlines if they don’t act promptly. 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, such as claims against governmental employees for which unique statutory notice requirements must be adhered to before filing suit. Simply put, “good things do not come to attorneys who wait,” says Anderson.

    Operator Error

    Whatever scheduling and administrative system exists in a lawyer’s office, it is only as good as the people who operate it. Anderson says she 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.” She says a lawyer also needs good staff people who understand why these deadlines are so important. “Staff turnover, illness, morale, and overall competency and consistency are more important than 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 entirely paperless office is not here yet for most lawyers. One of the goals in managing a practice is to maximize a lawyer’s effectiveness.

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

    A lawyer should find a home for all his or her documents. Anderson says too many times lawyers leave them in a pile on a desk or elsewhere. “We see claims for missed deadlines or missed statutes of limitation caused by misplaced paperwork. More diligent organization could have prevented a mistake.”

    She says there are ways to avoid those errors. “It sounds obvious, but sometimes lawyers get busy, especially those with a small office or small or no staff, and papers and files get set aside and forgotten. Pleadings and all matters with deadlines must be scheduled in a way that you do not miss a deadline. The calendar entries should be made in your computer system immediately upon receiving the document. If possible, the entry should be checked by a second person.”

    Electronic Lawyering

    Some of the more popular electronic case management and time management software programs are PracticeMaster, Clio, MyCase, Rocket Matter, Microsoft Exchange, Google Calendar, Abacus Law, ProLaw, Credenza Pro, Time Matters, PCLaw, and Amicus Attorney. There are others, of course. Nerino Petro, the State Bar’s Law Office Management Assistance Program (LOMAP) advisor, is a good resource for specific information about these products.

    The deciding factor on which software program to use often comes down to cost and how many people in the office plan to use the program. Some lawyers prefer to purchase licenses and pay an annual support fee while others prefer a monthly subscription fee, which generally runs anywhere from $20 to $50 per user.

    Terry Dunst of Bakke Norman in New Richmond says his office uses Time Matters and Microsoft Exchange. “I have my calendar available on my smartphone, which I find extremely useful. It syncs both ways, so I can enter an event from my phone, or from the office, or an assistant or other lawyer in the firm can also add events to my calendar. Collaborative calendaring for meetings or group events works well. That way, all of our attorneys and staff can, if need be, see and enter data on each other’s calendars.”

    Software compatibility and remote accessibility are two important factors for most lawyers. Madison attorney Brent Hoeft uses MyCase. He says the Web-based platform was one of the most important considerations for him. “It allows me to always have all of the pertinent client information and calendar with me at all times. This is very important for me because with my practice, my law office is wherever I am at the moment.” His software includes a client portal, document storage, billing, calendaring, task lists, and case workflow.

    “I practice primarily in the areas of estate planning and business formations so my practice is transactional rather than litigation based. Therefore, most of my deadlines are set by me and my client rather than a court, rules of procedure, or statutes of limitations. Client meetings are all scheduled through an online calendaring software called ScheduleOnce, which allows my clients to view the times that I am available and schedule a meeting with me at their convenience. This calendaring system automatically then syncs with my calendar in MyCase, my personal Google Calendar, and with my firm Outlook calendar as well.”

    Johanna Kirk of Superior uses PracticeMaster. She says the program is integrated with Outlook and onto her iPhone. “Every appointment or deadline gets entered into the calendar system, so I can do follow-up tasks and reminders. The system lets me enter client I.D.s for appointments and deadlines so I can look at my client’s name and see a list of upcoming dates, or I can use the calendar program to look at the daily/weekly/monthly entries. It works very well for me.”

    Even with sophisticated calendaring software, Hoeft says, it’s important that lawyers take the necessary precautions. “I am a big believer in being redundant, especially when it comes to backup of electronic files and deadline reminders. I have redundant reminders set independently on each of the programs that I utilize. These reminders are redundant within each program as I like to have multiple reminders at various points in time away from the actual deadline – usually two weeks, one week, and 24 hours. This redundancy provides me with confidence that nothing will be overlooked and also provides protection from any possibility of missing a deadline due to a software glitch as the deadline reminders are scheduled on three different and independent software programs.”

    If you have staff members in your office or an assistant who does your scheduling, Kirk encourages you to implement a good training system. “An example would be for a dispositive motion deadline: how far in advance do you want reminders so that you have time to draft and file the motion? Is the deadline for filing the motion or for hearing the motion? There is a difference and it will require different timelines for when I start researching and writing the motion.”

    “For a month or so, I advise the attorney to do the process with the staff member and have the conversations about how long it takes to write a motion, knowing what documents might be needed before the filing deadline (affidavits, discovery, certified survey of the property, and so on). I also encourage attorneys to have an open-door policy with staff about scheduling questions and reminder deadlines. If your staff person is unsure about how to schedule it for you, help him or her do it correctly.”

    In addition to time management, Dunst says the other thing lawyers should pay close attention to is document management. “Time Matters keeps track of all of our files under one roof. We are slowly moving to storage of older files electronically, but we still have paper files for current files as well as files within the last few years. Each attorney handles this a little differently, some using electronic more, some relying entirely on paper files. This seems to correlate somewhat to the age of the attorney, but even more than that, to the interest of the attorney and staff. Some people have just gravitated toward the electronic world of computers, tablets and smartphones, and some have not.”

    Dunst adds that understanding your system, both on the front end (typically called the “client,” where users enter events, deadlines, and so on) and the back end (the “server”), is crucial. “If you don’t understand your system, you may not set reminders correctly, or you may not get the reminder if you don’t have your phone with you. Software error can be things like relying on wireless – what if the wireless goes down?”

    Dunst agrees with Hoeft – redundancy is vital. “It is okay to rely on one system, as long as there is redundancy. The data is stored somewhere – there is what might be thought of as a ‘master’ copy stored somewhere by your system, either in the cloud or on your own server. That data needs to be backed up regularly. But you also need to have a copy of your calendar available to you, say on your phone or even on a paper calendar.”

    The Future

    As fast as technology is moving, 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, or others. With those newfound methods come new dangers for lawyers.

    Every time your firm upgrades to a better system, bugs must be worked out. With new attorneys, most of them technically savvy, entering the legal profession each year and the increased use of technology by the court system, time management and the way lawyers practice will continue to evolve, as will the risk of malpractice. Lawyers are wise to continue to audit their time management and practice systems to keep up with the changes. As Anderson cautions, “Make a file review and regular auditing of your calendaring system crucial components of your firm’s risk management efforts.”

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