A checklist approach to avoiding professional liability claims

A checklist approach is a major determinant of whether a professional liability claim lies in wait in future. It can make a great deal of difference in both the firm and lawyer’s ability to avoid such claims.

A checklist that is either done electronically or in hard copy, appended to a file, means that anyone handling the file has a blueprint for activity required to handle the file safely and with an appropriate standard of care.

In fact, the standard of care that goes into the development of the checklist approach itself is part of an overall increase in the efficiency and effectiveness of lawyers and staff. Law firms that insist upon the use of such checklists are far less likely to miss an important element in the execution of a file.

No matter what the practice area or the level of experience of the lawyer(s) involved, using this deceptively simple approach gives senior lawyers a far better chance of sleeping through the night. The basics of the issues involved will be mapped out ahead of time and there will be far lower chance of something going awry when others handle a file.

Balancing priorities

Many years ago, I was working with a small personal injury (contingency fee) firm that had experienced a number of claims involving missed dates and lack of overall administration to the practice.

As I was enumerating the various responsibilities in handling a simple auto accident file, the lawyer across from me said “you mean like I were flying a plane?” It turns out that he was a pilot and that suddenly he understood that the approach to handling a PI file was essentially the same as the approach that a pilot uses in his pre-flight routine. Checklists are used regularly, not because the pilot hadn’t flown before, but because there are so many details involved that a checklist is a necessity to staying safe.

In both of these environments, there are many different responsibilities that are assumed. In the law firm context, at the origination of the file, information regarding the claimant must be given, medical records must be managed, a police report is required, depositions will be taken, a settlement conference will be held, a demand will be made and a settlement (or trial) will conclude the matter. All of this is a virtual certainty from the point at which the potential client first walks in the door.

Recently, the same issue was seen in a different law firm: failure in due diligence. In that situation, a lawyer and his staff had missed an important element of a file’s management, which had led to a professional liability claim.

The lawyer had been in practice for 15 years and had handled literally hundreds of such cases, each having the same basic make up, with the same basic requirements for safe handling. However, a paralegal with whom he worked closely was out of the office on the date of the omission and he failed to take that into consideration in his directions to a secretary who was unfamiliar with the procedures. He didn’t add a particularly important element to his instructions and, consequently, the requirements for an appropriate standard of care were not met.

This is not an uncommon element to the realities of professional liability claims. Lawsuits are made against lawyers who know exactly what should be done, but struggle with time, case priorities and a variety of other responsibilities. And so, a claim is filed.

Thomas Berman has been advising law firms on practice management and professional liability issues for more than 20 years (www.bermanassociates.net)