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    Wisconsin Lawyer
    December 06, 2019

    Managing Risk: Top 10 Ways to Save Your Malpractice Deductible

    The best malpractice insurance policy is the one you never have to use. Here are WILMIC's top 10 things to keep in mind when trying to avoid being the target of a grievance or a malpractice claim.

    Thomas J. Watson

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    Brilliant legal work is sometimes not enough to insulate you from grievances or legal malpractice claims. ABA statistics show an average of three claims per career for every lawyer starting in practice these days. Mistakes happen. They’re a fact of life and the reason you have malpractice insurance.

    Of course, there are 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 selecting clients, managing client expectations, billing, and calendaring, can help you provide better representation. Wisconsin Lawyers Mutual Insurance Co. (WILMIC) frequently presents continuing legal education programs focused on helping lawyers assess how they manage those procedures and avoid malpractice claims. Katja Kunzke, WILMIC president and CEO, likes to call this topic the top 10 ways to avoid spending your deductible. The list is not all inclusive and does not guarantee you will never have a claim or grievance filed against you, but it is a good start to making your life easier, minimizing risk, and maybe even making you a better lawyer.

    With apologies to David Letterman, let’s look at our top 10 list.

    1) Stop Lying to Your Calendar About Who Is In Charge of Your Life

    More than 20 percent of all claims and 27 percent of all claim dollars result from calendaring errors, including missed deadlines, often because lawyers do not calendar enough time for the “unexpected.” When was the last time you had a day without the “unexpected?” Kunzke, who ran WILMIC’s claims department for 14 years, 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.

    Lawyers often find that tasks take longer than the time they have put on their calendar. Maybe a client meeting takes longer than expected. Kunzke says, “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 you have some back-up if you need it.”

    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 lawyers in small firms often feel they cannot be choosy about the clients they select.

    Kunzke says, “Lawyers need to believe they can say ‘no’ and their practice won’t dry up. It doesn’t take long to recognize the clients you shouldn’t have taken.”

    Don’t take cases strictly for financial reasons. It can be tempting to accept every potential client who comes in the door. But you may end up with a case outside your area of expertise. This is what Kunzke calls dabbling. “A high number of malpractice claims are directly related to this problem,” she 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 the same matter. For one thing, Kunzke says, “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?”

    Red flags can also include a gut check. Assess honesty and reliability in potential clients at the very first meeting. You can sometimes learn things about a potential client by observing the person’s interactions with your staff. Rude or discourteous behavior or giving inconsistent information to a staff member can be significant red flags.

    More than 20 percent of all claims and 27 percent of all claim dollars result from calendaring errors, including missed deadlines, often because lawyers do not calendar enough time for the unexpected.

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

    You will always have least favorite clients, and they likely are the ones you don’t want to deal with. So you won’t. “These are the matters where you will fail to properly communicate, miss deadlines, and make bad choices,” Kunzke says. Unfortunately, these things may 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,” Kunzke says. “So either fire the client or keep them. If you keep them, plan to be miserable while you do the work that prevents the need to put your carrier on notice.”

    4) Conflicts of Interest Aggravate Everyone

    You can persuade clients to waive potential conflicts, but Kunzke says jurors 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 did not understand what that meant. She 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.”

    5) Your Client Already Knows How the Case Is Going to Turn Out

    People who “know everything” and just want you to carry out their wishes rarely, if ever, are good clients. They become the clients who don’t listen attentively and go into denial when the discussion turns to potential weaknesses in the case. It’s a major warning sign if a potential client tells you he “knows the law” or she was “told the law” by several other lawyers.

    Kunzke says lawyers should always ask clients what they expect for an outcome and listen to them. When clients’ answers don’t make sense, correct them. “You need to make sure they understand that ‘winning’ looks a lot like compromising,” she says.

    Everyone who watches TV and movies thinks they know what lawyers do. Based on those legal dramas, nonlawyers think lawyers’ work is always exciting and very rewarding. Cases always go to court, and the lawyer’s three-minute closing argument brings tears to the judge’s eyes and gasps of outrage from opposing counsel. Clients are grateful and shower lawyers with praise, gifts, and bonus payments. Some clients want to date their lawyers!

    Many clients also think they know how their case is going to turn out. They will be vindicated, completely reimbursed, pain free, and 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 clients that you cannot promise them an outcome. In addition, throughout the representation, be sure to inform the client of the risks that are involved.

    Always put your advice in writing, even if you’re sure the client understood it when you said it.

    6) Never Give Bad News to a Hungry Client

    When a client first comes to you, their problem is BIG. Kunzke 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 start to shrink their problem, their need for you shrinks, too – they are less willing to listen.”

    As you learn about new problems along the way, tell the client about them early and often. Kunzke 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 important, Kunzke says, “Say and write the important stuff. And use words they understand, not words only lawyers use.”

    7) You Have to Let Clients Make Bad 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, Kunzke 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. Even the dumb ones.”

    8) What the 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.” The client hears, “You will win; it won’t cost any of your money; it will happen quickly; you will be happy when it’s over.”

    Kunzke 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 everything you said.”

    9) Smiling and Nodding Do Not Indicate the Client Understands or Agrees 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 have to pay you to solve it.

    Kunzke 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. We all do it, whether we’re in our doctor’s office, facing a police officer who pulled us over, listening to Uncle Walter’s 600th retelling of his rags-to-riches story at Thanksgiving, or enduring the senior partner’s 600th retelling of how much harder it used to be to practice law. We don’t ask questions, and we smile and nod approvingly. Never mistake smiling and nodding as anything other than an indication of discomfort. Say the important stuff loudly, with ordinary words, and put it in writing!”

    10) They May Call It ‘Practice,’ but They’re Just Kidding

    As Kunzke tells lawyers, “The standard of care is ‘be really good all the time.’ You aren’t really good all the time – nobody is. If you say you’re extra good, in an ad for example, you are holding yourself out as a ‘specialist.’ Then you have to be extraordinarily good all the time. Even if you say you’re an average lawyer (and who does that?), you still have to be really good all the time. If you continue to make yourself available to your client 24 hours a day on your smartphone, you will raise the standard of care.”


    The bottom line, Kunzke says, is the following: “Pay attention to your calendar, what your clients are saying, changes in the law, and potential twists and turns of your cases. You have to keep up.”

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