Most lawyers don’t worry about malpractice claims. Doctors don’t either. Regardless of whether the idea is sweated over much by either group of professionals, the thing that “could never happen” sometimes does.
About 7.5% of doctors have a claim filed against them each year. And it’s not clear how many lawyers get sued, but assuredly it may happen to the best of them.
The most appropriate defense, here, might be a good offense.
The Busy Lawyer’s Guide to Success recently published a blog on the top 10 steps you can take to avoid a legal malpractice suit.
Failures to know or apply substantive law accounts for about 10% of suits. “But I know the law….” you may be saying. “I know what to apply.” Granted. But when you choose not to apply a certain law, your client may not know the reasoning behind said action.
You may not have connected with your client. “In most areas of law practice,” notes the blogger, “lawyer/client communication problems are the number one cause of claims.”
(Close on the heels of this sizable misstep are time management and deadline issues. )
So now that you know you need to focus on improving your back-and-forth with the client, what specific tips would help you do that?
The top recommendation is to put it in writing. “I don’t need anything in writing,” you might be saying. “I’ve known XYZ Company for a decade. They would never sue me.” That’s a laudably optimistic outlook, but one that may, with time, prove impractical.
Human beings being what they are, when things go awry—such as when misunderstandings occur, or when terms are not clarified up-front to everybody’s liking—toes may be inadvertently stepped on. And no matter how lightly you may have stepped on your client’s toes, the response might not be a light one at all.
So start out with a written retainer.
Second, get the money up front. The amount should be enough to cover all initial work that needs to be done on the matter. “Set up your accounting system to monitor and remind you when the amount in trust is getting low,” the author explains. And when that’s exhausted, ask for it to be replenished.
Stop working on the file until this is done.
BLGS also advises, among other things, that you: document everything; ask “How am I doing?” at regular intervals; and that you not take on a case you’re uneasy about.
In the latter case, “get appropriate help or refer it to another lawyer”. Some of the reasons you might be uncomfortable include: “…unfamiliar[ity] with the area of law, a potential conflict…, matter for a relative or friend, demanding or difficult client.”
Stay one step ahead of your clients in every area you can think of, and you just might put yourself out of the running for attorneys and firms likely to be sued.
To get an-in-depth glance at the most common mistakes which lead to malpractice suits, see The Biggest Claims Risks article (in PDF viewing mode).
To refresh yourself on medical malpractice stats, go here: http://www.reporternews.com/news/2011/aug/22/only-1-in-5-medical-suits-leads-to-pay/