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    Wisconsin Lawyer
    January 07, 2022

    Managing Risk
    Top 10 Tips: Avoid Spending Your Malpractice Insurance Deductible

    Some lawyers never experience a malpractice claim during their entire career; others are not as fortunate, regardless of their skills as an attorney. Here are tips to avoid becoming that "unfortunate" lawyer.

    Thomas J. Watson

    piggy bank with lock

    As we move into 2022, what are some of the things you should think about to improve your practice and serve your clients? And just as important, how can you avoid the mistakes you might have made in the past or hope not to make in 2022?

    Mistakes happen. It’s a fact of life. That’s why you have malpractice insurance. Some lawyers never experience a malpractice claim during their entire career; others are not as fortunate, regardless of their skills as an attorney.

    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 client selection, managing client expectations, and billing and calendaring, can help you provide better representation for your clients. Here are 10 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.

    A lawyer once 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.”

    You can be your own worst enemy with regard to staying on schedule by allowing yourself to get distracted by email, phone calls, and other disruptions. Do you ever turn off your phone or refuse to look at your email until a pressing task is done?

    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 picky 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 a dabbler. “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?

    There are several red flags of matters or cases to avoid. “If a person has been previously represented by one or more attorneys who you know do good work, be leery of that potential client,” Beier cautions. “If the person has outstanding money judgments or wishes to negotiate fees, consider it a red flag,” he adds. Beier says there are other warning signs. “People 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. Be careful. You may end up with a client, but you may also have signed up for a lot of headaches and stress that you don’t need.”

    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 of those 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,” 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 earned fees from 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 may 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. Your client already knows how this is going to turn out.

    Someone who “knows everything” and just wants you to carry out their wishes rarely, if ever, becomes a good client. This is the person 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.

    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 important, 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! Documentation is critical – not only for you, but for your client as well.”

    You might want to ask the client what they heard, and don’t hesitate to use visual aids to help clients “see” what you’re talking about.

    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.” And he says while it may be difficult sometimes to turn business away, “taking on a ‘bad’ client is more problematic than having no client or not enough clients.”

    » Cite this article: 95 Wis. Law. 53-55 (January 2022).

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