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    Wisconsin Lawyer
    June 01, 2018

    Managing Risk
    Top 10 Ways to Avoid a Malpractice Claim

    You can reduce the chances of being among the many lawyers who have to use their malpractice insurance by integrating these risk-reduction approaches into your practice.

    Thomas J. Watson

    umbrella in the rain

    Over the years, lawyers have often asked me what the odds are that they would be the target of a malpractice claim. ABA statistics show an average of three claims per career for every lawyer starting in practice these days. Mistakes happen. It’s a fact of life. That’s why you have malpractice insurance. Some lawyers get through their entire career without having the experience of a claim, while others are not as fortunate, regardless of their lawyering skills.

    There are, of course, things you can do in your everyday practice to help minimize the risk of a claim. In addition, periodically assessing your risk management strategies, including client selection, managing client expectations, billing, and calendaring, can help you provide better representation for your clients. Let’s focus on our top 10 list of ways lawyers can assess how they manage those procedures and avoid malpractice claims. Think of it as a list of ways to avoid spending your legal malpractice insurance deductible.

    1. Stop Lying to Your Calendar About Who Is in Charge of Your Life

    Twenty-three percent of all claims and 28 percent of all claim dollars result from lawyers missing deadlines because they don’t calendar enough time for the “unexpected.” When was the last time you had a day without the unexpected? Matt Beier, claims attorney at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), says, “Calendar as though something bad will happen.”

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

    At a recent CLE presentation, one lawyer I was talking to told me, “I do find that tasks sometimes take longer than the time I’ve put on my calendar. Maybe a client meeting takes longer than expected. I always try to be careful to not be led too far astray by the latest emergency.”

    Beier adds, “Allow for time to fix mistakes. Allow more time to get it done than you think necessary. You might even consider including it in someone else’s calendar in the office so they can bail you out if necessary.”

    Madison family law attorney Janice Wexler says, “I can be my own worst enemy with regard to ‘staying on schedule’ in that I allow myself to get distracted by email and phone calls and by my office suite mates. So, when I really need to stay on task I put my phone on ‘do not disturb,’ with instructions to my paralegal as to exceptions to the rule, I hang a hotel ‘do not disturb’ sign on my closed door, and I do not look at my email and silence any audio that announces its presence.”

    2. “No” is a Complete Sentence

    Our claims attorneys often hear the refrain, “I knew I shouldn’t have taken that case.” Facing real people in real crises makes it difficult to always make the right decision about which cases to choose. And turning away business is never easy. Solo practitioners and small firms often feel they cannot be choosy about the clients they select.

    Beier says, “Lawyers need to believe they can and sometimes should say ‘no’ and the phone will ring again. It doesn’t take long to learn which clients you shouldn’t have taken.”

    Don’t take cases strictly for financial reasons. It can be tempting to take everything that comes in the door. But you may end up with a case outside your area of expertise. This is what Beier calls dabbling. “A high number of malpractice claims are directly related to this problem,” he says. “Don’t be afraid to refer a case if you do not have the required expertise.”

    Some lawyers stay away from representing a client who has already had at least one other attorney. For one thing, it may be an indication that the client will never be satisfied no matter who is representing them. Second, how long before the client leaves you? Will the client cooperate? Is the client going to make demands that are unrealistic or unethical?

    Wexler says she looks for several red flags. “If a person has been previously represented by one or more attorneys who I know do good work, I will be leery of that potential client. If the person has outstanding money judgments or wishes to negotiate fees – ‘I’ll gladly pay you tomorrow for a hamburger today’” – I consider it a red flag. Folks who make and reschedule initial phone conferences on a repeated basis. Potential clients who bring friends or family members with them to a first appointment and completely defer to that person can be worrisome as to who is or will be making decisions. Potential clients who say they are not angry, but seethe, and refuse to acknowledge it or obtain therapy are another category of concerning individuals.”

    3. If You Don’t Like Your Client, You Better Love Your Carrier

    You will always have your least favorite clients, and they are the ones you don’t want to deal with. So you won’t. “These are the matters where you may fail to properly communicate, may miss deadlines, and could make bad choices,” Beier says. Unfortunately, all those things can lead to a much higher risk of a malpractice claim.

    “You don’t have to like your client to do their work, but you do have to do the work or pay the claim,” Beier says. “So either fire the client, plan to be miserable while you do the work, or be prepared to put your carrier on notice.”

    4. Conflicts of Interest Aggravate Everyone

    You can get clients to waive potential conflicts, but Beier says judges generally aren’t impressed with conflict waivers, especially if the lawyer was paid by both sides. In addition, clients may recall waiving a potential conflict, but they inevitably say they didn’t understand what that meant. He says, “If it meant they weren’t going to ‘win,’ they wouldn’t have done it. Life is too short and you’re too busy to spend time and money defending against conflict claims. There is plenty of unconflicted work that needs your full attention.”

    For solo practitioners in their early years of practice, it may seem unnecessary because they might be able to name all their clients. But, as the years pass, the importance of conflict checks increases as lawyers may simply forget the little cases here and there that they have done.

    5. Avoid the Client Who Already Knows How the Case Is Going to Turn Out

    Someone who “knows everything” and just wants you to carry out their wishes rarely, if ever, makes for a good client. This is the client who doesn’t listen attentively and goes into denial when the discussion turns to potential weaknesses in the case. It’s a major warning sign if a potential client remarks that they “know the law” or they were “told the law” by several other lawyers. Wexler suggests, “Invite a second opinion, write one or more CYA letters, suggest alternative counsel who will be ‘a better fit.’”

    Beier says always ask your client what they expect for an outcome and listen to them. When they don’t make sense, correct them. “You need to make sure they understand that ‘winning’ looks a lot like compromising,” he says.

    “Everyone watches TV and knows what lawyers do. Your work is always exciting and very rewarding. Your cases all go to court and your three-minute closing argument brings tears to the judge’s eye and gasps of outrage from opposing counsel. Clients are grateful and shower you with praise, gifts, and bonus payments. Your clients also know how their case is going to turn out. They will be vindicated, completely reimbursed, pain free, debt free, have their dignity restored, and get more money than they’ve asked for. If the lawyer does it ‘right,’ nobody has to compromise. Wouldn’t it be nice if it always worked that way?”

    Ultimately, it is important to tell a client that you cannot promise them an outcome. Throughout the litigation, inform the client of the risks that are involved.

    6. Never Give Bad News to a Hungry Client

    When a client first comes to you, their problem is BIG. Beier says, “That is the time to tell them that it will take time and money to fix that problem, and that our legal system requires compromise.”

    As you learn about new problems along the way, tell your client about them early and often. Beier says, “These are excellent moments to test their expectations: Let the client read the bad report from the expert and explain it to you. You will know how much correction the current expectation will require.”

    Most importantly, Beier says, “Say and write the important stuff. And use words they understand, not words only lawyers use.”

    7. You Have to Let Your Client Make Dumb Choices

    Clients will sometimes do the wrong thing, not spend enough money to do the right thing, and occasionally tell you not to worry about the important thing. They have a right to do all these things. Hindsight will often show them they were wrong. Usually hindsight is too late. Therefore, Beier says, protect yourself. “Make sure you told them what the right thing was. Say it and write it. Give them enough information to enable them to make the choices that belong to them.”

    8. What Your Client Heard Matters More Than What You Said

    We all hear what we want to hear. You say, “You might win; it is not likely to cost an unreasonable amount of your money; it will happen as quickly as our system allows; I’m hoping you will be satisfied when it’s over.” Your client heard, “You will win; it won’t cost any of your money; it will happen quickly; you will be happy when it’s over.”

    Beier says, “Always put your advice in writing, even if you’re sure the client understood it when you said it. They probably did. But what they remember is what they wanted to hear, not necessarily what you said.”

    9. When They Smile and Nod, Your Client is Not Understanding or Agreeing With You

    We all want uncomfortable situations to pass quickly. Clients are usually uncomfortable in your office because they couldn’t solve their problem on their own, they don’t believe they should have the problem at all, it’s not their fault to begin with, and they don’t like that they are going to pay you to solve it.

    Beier says clients often handle these uncomfortable feelings in a very understandable way. “We all know these two rules: questions make everything take longer, and smiling and nodding makes everything go quicker. Never mistake smiling and nodding as anything other than an indication of discomfort. Say the important stuff clearly, with ordinary words, and put it in writing!”

    Wexler has learned several tricks of the trade over the years. “Have the client bring a friend to listen, ask the client and their friend to repeat what they heard, use visual aids – I have giant sticky notes and multicolored markers to help visual clients ‘see’ what I’m talking about, redirect the client to prior correspondence where a question may have already been answered, direct the client to the Frequently Asked Questions section of a relevant website, and ask the client what would help, especially if we keep replowing the same ground.”

    10. They May Call it “Practice,” But They’re Just Kidding

    As Beier tells lawyers, “The standard of care is not perfection, but you have to be really good. You aren’t perfect all the time – nobody is. Be careful about holding yourself out as a ‘specialist.’ Then you have to be extraordinarily good all the time in that specialty. Even if you say you’re an average lawyer (and who does that?), you still have to be really good all the time.”

    The bottom line, Beier says, is “pay attention to what good lawyers are doing – you have to keep up.”

    After more than 35 years in practice, Wexler says there is at least one rule of thumb she never forgets. “Taking on a ‘bad’ client is more problematic than having no client or not enough clients!”

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