When was the last time one of your clients complained that you had done too much for him or her? The answer undoubtedly is never, except for a possible fee dispute here and there.
Clients simply do not complain about the attention being paid to their legal affairs. More is almost always better. What they object to is inattention or what they perceive to be inattention.
The consequence of this is predictable. Lawyers do not get sued for what they do: They get sued for what they do not do. Obviously, there are exceptions to this rule. But legal malpractice actions overwhelmingly are based upon inaction of one sort or another.
For example, I have yet to see a complaint that a particular matter was investigated too thoroughly. On the other hand, clients commonly sue because due diligence was inadequate; discovery was not taken; documents were not reviewed; or witnesses were not interviewed.
I have never seen a complaint that a client was kept overly advised of developments or legal options. But I have defended many cases in which a lawyer allegedly failed to communicate a settlement offer or demand or did not explain the risks attendant to some proposed course of action.
The point is simple. When lawyers do something, they usually do it well. The real risk of legal malpractice liability is in doing too little or doing nothing at all. Moreover, this risk often is at its highest at the worst possible time.
Part of the condition of being human is to enjoy some matters more than others. We gravitate toward doing what we want to do and defer what is less satisfying. This, however, has significant legal malpractice implications. For example, matters having the least merit are the ones most likely to be mishandled.
Furthermore, difficult, unpleasant clients are the ones most likely to be ignored or put off. The result is quite unfortunate. Those persons most likely to sue are the ones most likely to have grounds to sue - but over those matters that are least likely to have true merit.
Some lawyers also dislike dealing with problems of their own creation, especially if they require communication with the client. Consequently, matters that could be solved or mitigated if attended to are left to fester. Small problems become larger, and large problems become unmanageable - simply because of inaction by the lawyer.
The bottom line is this: If you want to avoid being sued for legal malpractice, then do something. This is simple advice, but it is sound. It is also more difficult to follow for many lawyers than they would like to admit.
Make it your practice to accomplish something every time to pick up a file, and train your associates to do the same. Action is good. Write a letter. Make a phone call. Initiate discovery. Make a record of important events.
If your desk already is piled high with unpleasant jobs, make a commitment to reduce the pile. If there is something you do not want to do, tough it out and do it. I can assure you that doing something you do not want to do is far easier and less unpleasant than defending your failure to do it.
The line between procrastination and neglect can get mighty thin. Rarely is there any good reason to walk it.
This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. |