One of the first things I learned as an associate in my firm’s professional malpractice group was the importance of documenting the file. It is one of the most common mistakes made by an attorney being sued for malpractice. Documenting the file requires an attorney to write a simple letter or email to the client confirming the “who, what, where, when and why,” for major decisions. While this is understandably one of the least favorite parts of the practice of law, it is a necessary evil. When asked if there are any letters or emails confirming key decisions made in the case, the attorney often reacts incredulously, stating that he or she was too busy to send a letter, that it is not his or her practice to send “CYA” letters to the client to avoid future lawsuits, or that the client refuses to pay for such costs. However, time has a funny way of affecting a person’s memory. So too does an adverse outcome in a case.
This is not to say that everything must be documented. Let common sense dictate which things are confirmed in writing. Make it your belated New Year’s resolution. You will be surprised how quickly it becomes second nature. Send your client all pleadings, discovery and correspondence in the case. Send a follow up email or letter confirming statutory deadlines, calendar entries, and instructions from the client, especially if the instructions concern a significant issue in the case.
Doing so will accomplish two things. First, it will help protect you from unnecessary litigation down the road. As stated above, time, and sometimes an adverse outcome in a case, has a funny way of affecting a person’s memory. Documenting the important decisions could save you from a lengthy, expensive, and often highly contentious malpractice case by providing you with written proof as to why certain decisions were made.
Second, it improves the quality of representation you provide to your clients. Misunderstandings happen, especially with clients that are new to legal disputes. Confirming decisions in writing will provide a client the opportunity to follow up with any questions or clarify any potential confusion, which in turn helps you to better serve your clients.
So start documenting the file, a few minutes of your time now could save you years of frustration later.