Solos and small-firm attorneys are particularly vulnerable to charges of legal malpractice. According to the American Bar Association, most malpractice lawsuits are filed against lawyers in firms with one to five attorneys. Without the information technology departments, big administrative budgets and large support staffs that large firms may have at their disposal, solos and small firms must be proactive in avoiding common malpractice traps.
Missed Deadlines Litigation errors consistently show up among the top causes of malpractice claims reported to Lawyers Mutual each year. In 2010, errors arising out of litigation accounted for 36% of all claims reported, second to real estate. In the vast majority of cases, the statute of limitation on the client's case expired and there was nothing left to do but assess the damages. Here's a look at a few of the common problems and suggestions to make your office safer.
Failing to Maintain a Comprehensive Calendaring/Docket Control System Lawyers miss deadlines for a variety of reasons, but the most common is the lack of a good calendaring and docket control system. The brand of case management and calendaring system is not as important as assuring that the necessary events are entered and executed. The basis of a well-designed docket system is the use of a central system, i.e., one controlled by someone who is not the person responsible for meeting the deadlines. There is double security when responsibility for compliance rests with both the lawyer or staff person responsible for meeting time limitations and with the person responsible for the central system. Having the person responsible for the central system verify compliance is critical in achieving a well-designed system. Both the person responsible for the central system and the person responsible for meeting the deadline should verify compliance with important deadlines. Lawyers Mutual handles numerous claims every year resulting from missed deadlines caused by the one person in charge of docket control being sick or otherwise away from the office when the deadline passes, so make sure this important responsibility is delegated to a back-up person for emergency situations.
Waiting Until the Last Minute to File the Complaint One of the biggest mistakes we see at Lawyers Mutual is the lawyer filing complaints at the eleventh hour on the eve of the statute of limitation deadline. Although the lawyer believes he is within the safety zone because the limitation period has not yet expired, filing at the last minute is often a risky practice. In many cases, the plaintiff's lawyer may be unable to perfect service of the summons and must file an alias and pluries summons to keep the action alive. Sometimes the lawyer and/or his support staff forget to calendar the date the original summons expires. As a result, the action is barred because the statute of limitation expires before the summons is renewed.
Other times, the lawyer inadvertently names the wrong defendant, and the opposing party files a motion to dismiss on that basis. If the complaint is filed at the last minute, the lawyer has little or no time left to investigate and determine the name of the proper party before the deadline passes. For these reasons, we strongly encourage plaintiffs' attorneys to file the complaint well in advance of the statute of limitation deadline. Filing early will give you more time to fix mistakes such as improper service or naming the wrong party. Hopefully, this extra time will give you an opportunity to correct mistakes before a malpractice claim develops.
Failing to Know the Correct Statute of Limitation Sometimes, even with proper docket control systems, the lawyer fails to determine the correct statute of limitation applicable to the case. For example, the limitation period in North Carolina for bringing an action for personal injuries resulting from an automobile accident is three years, but the limitation period is shorter in other jurisdictions. You should always verify the statute applicable to such actions, especially those that arise outside of North Carolina.
For additional information on setting up a calendaring and docketing system, check out our handouts in our risk management resources. You will also find a North Carolina Statute of Limitation Index there.
About the Author
Camille Stell is President of Lawyers Mutual Consulting and Services, offering succession planning, business development coaching, keynote presentations and more. Continue this conversation by contacting Camille at email@example.com or 800.662.8843.