General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

Technology eReport

American Bar Association - Defending Liberty, Pursuing Justice

JULY 2011

Vol. 10, No. 2

Features

 

Avoiding Common Malpractice Risks Associated With Legal Calendaring

It may come as no surprise that many law firms, from solos to megafirms, are anxious when it comes to managing their court calendars and legal deadlines. As a result, firms are often relegated to a “fingers-crossed” approach when it comes to avoiding costly mistakes. What is rather surprising, however, is that most of these same firms, especially smaller practices and solos, still don’t have a practical strategy for addressing the real risks associated with missed deadlines and calendar-related errors.

Fortunately, technology and automation can help (without breaking the bank). Legal-specific deadline calculation and rules-based calendaring services can assist with the calendaring process, improving accuracy and minimizing the overall risk of missing a deadline that could eventually lead to a malpractice lawsuit.

Ugly Truths

According to the most recent Profile of Legal Malpractice Claims, a study published by the ABA Standing Committee on Lawyers’ Professional Liability, calendar-related errors are the leading cause of malpractice actions against lawyers and account for more than 34 percent of all malpractice claims. Specific infractions include failure to file documents (10.7%); improper calendaring (7.4%); failure to know or ascertain deadlines (6.4%); procrastination in following up (4.2%); failure to react to the court calendar (3.6%); and clerical errors (2%). Equally as clear is the revelation that small firms account for a majority of all claims with more than 70 percent of claims filed against firms with five or fewer attorneys (a 5% increase since the previous study in 2003).

Technology Levels the Playing Field

While we live in a technology age that often finds us struggling to truly benefit from the latest and greatest new gadget or tech tool, rules-based legal calendaring software has come of age and is at law firms’ disposal when it comes to automating court calendar rules and deadlines. Beyond automation, modern calendar technology is increasingly being utilized as a risk management tool, designed to minimize calendar-related malpractice risks. Calendaring systems can play a supporting role in firm risk management or act as the driving force behind an integrated firmwide risk management initiative. Flexible deployment options enable firmwide calendaring, via the desktop, through web portals and even mobile devices.

Specifically, automated rules-based systems enable firms of all sizes and complexities to automate date scheduling (the service calculates all related dates and deadlines); reduce human errors (since any calendaring system is only as good as the information entered); adjust for local court rules and holidays; schedule and update groups for complex litigation; and sync dates with Outlook calendars.

In addition to technology, there are many practical “do-it-now” ways to contain and manage calendar-related risk. Here are six any practitioner can try out right now:

  • Development of a risk management program: designed to clearly define loss prevention policies and articulate how your firm will manage risk through people, processes, and technology, regardless of the practice size or complexity.
  • Review and analysis of malpractice carrier mandates: understanding carriers’ automation requirements will streamline compliance and facilitate potential insurance discount eligibility.
  • Establishment of disaster recovery/business continuity procedures: get lawyers’ calendars in as many places as possible and advocate the establishment of a firmwide, centralized calendar. Add this to your formal DR/BC plan as an immediate step to having an actionable process.
  • Establishment and documentation of calendaring practices and procedures: includes analyzing flow of pleadings and documents; auditing users to verify firm compliance; and reviewing firm culture/user attitudes to determine fit for automated calendaring systems. Although such procedures might be more applicable to larger firms, conducting an audit on how the firm is currently calendaring and circulating that information is recommended even for solos.
  • Desktop calendar integration: integrating calendaring systems with existing platforms such as Outlook, GroupWise, and Lotus Notes adds to the cohesiveness and integrity of the firmwide, centralized calendar. Although integrations with existing platforms are important, making sure you take advantage of smart technologies that correctly calculate all dates for you (so you don’t calendar wrong dates) are equally critical.
  • Open access minimizes missed deadlines: establishing a calendaring portal provides anytime, anywhere access to critical dates and deadlines and ensures that all parties—lawyers, support staff, clients—see the same dates, whether via their desktop, the web, or smartphones.

Making the Case for Legal Calendaring Alternatives

As mentioned above, an effective way to minimize errors is to use a rules-based computerized calendaring program or an automated, Internet-based legal date calculation service. Here are some tips and pointers to keep in mind when contemplating their use:

  • Legal calendaring is not “one size fits all”: rules-based computerized date calculations services now operate via a software-as-a-service web model. They allow users to pick and choose any and every court rule and calculation they need, either one calculation at a time or one entire case at a time.
  • Limited budgets, no problem: “pay-as-you-go” or “pay-per-case” pricing models best meet the needs of firms with limited budgets and those that prefer to bill calculation fees back to clients.
  • Proactively address disaster recovery/business continuity: accessing calendars online and having redundancies housed in multiple locations greatly aids back-to-business recovery after disaster strikes. Telling the judge you arrived late for court because your planner was destroyed in an office fire will not hold water.
  • Deadline calculation services can serve as a tremendous productivity enhancer: automating this tedious but necessary process often saves days if not weeks of research time while simultaneously reducing human error.
  • Usability and an intuitive interface are all essential features of a useful service: the whole idea behind automating the calendaring and rules calculation process is to be able to do it faster than the “old fashioned way.” Speed depends on how simple it is to navigate through various rules, select what you need, schedule it, pay for it, and move on.
  • Verify compliance: although it is common to delegate certain aspects of calendaring and deadline calculations to an experienced legal secretary or paralegal, with risk management in mind, the attorney should still be the one to control the process and take ultimate responsibility for the outcome.
  • Take training seriously: modern SaaS-based technologies will have you up and running with your first calculations in no time. An additional investment of 15­­­–30 minutes can elevate users to expert status and further speed up the calculation options process. 

Testing Your Calendaring IQ

Although there are many myths about legal calendaring, here are several truths about modern systems and their relevance to law firm risk management:

FACT: According to the ABA’s Profile of Legal Malpractice Claims study, the smaller the firm, the higher the risk of malpractice. More than 70 percent of all claims, according to the survey, were filed against firms with five or fewer attorneys.

FACT: A calendaring system can be an integral part of your firm’s disaster recovery plan. Maximizing calendar exposure firmwide, encouraging integration with other desktop calendars, and establishing one cohesive, centralized, and easy-to-access calendaring system will minimize calendar-related errors, reduce billable time spent on researching court rules, and provide a reliable calendar back-up that can be remotely accessed, especially during a disaster scenario.

FACT: According to the ABA’s Profile of Legal Malpractice Claims, more than 34 percent of malpractice claims arise from a failure to calendar properly, including failure to file documents; no deadline; improper calendaring; failure to know or ascertain deadlines; procrastination in following up; failure to react to the court calendar; and clerical errors.

FACT: Many state and national malpractice insurance providers offer discounts to law firms that use automated, rules-based calendaring technology. It pays to review a carrier’s calendaring mandates, specifically as they relate to automation, firmwide calendar access, and calendar back-ups.

FACT: Calendaring web portals can provide mobile lawyers and clients anytime, anywhere access to critical dates and deadlines. Furthermore, web-based date calculation services do not require any software installs.

Rules-based calendaring technology has come of age and is at small firms’ and solos’ disposal when it comes to automating calendaring and managing deadlines. In addition to speeding up the calendaring process and hopefully reducing calendar-related errors, firms will take note that smart calendaring can serve as a proactive risk management measure and also satisfy nagging disaster recovery requirements, often leading to discounts on malpractice insurance premiums.

Joseph C. Scott is an LA-based attorney and vice president/general manager of CompuLaw, LLC and Deadlines.com (formerly Deadlines On Demand, LLC), providing legal rules-based calendaring software and services for law firms. He is a regular speaker, CLE presenter, and author on the topic of risk management, legal industry calendaring, business continuity, and related case strategy. He can be reached at (310) 553-3355 or jscott@compulaw.com.

© Copyright 2011, American Bar Association.