As the malpractice carrier for every lawyer in private practice in Ontario, my employer sees a complete picture of the malpractice errors that occur across all areas of the law and at firms of all sizes. Fifteen years of claims statistics show that missed deadlines and time management errors are consistently the second biggest cause of claims—causing one in six LAWPRO claims. They also represent roughly one-sixth of LAWPRO’s claims costs. The claims data from other U.S. and Canadian jurisdictions paints a similar picture.
And contrary to what many lawyers expect, it is interesting to note that missed deadlines and time management-related errors are the second most common cause of malpractice claims at firms of all sizes. When it comes to time and task management, people make mistakes, and systems break down in the same ways at solo, small, medium and large firms.
This article will give you insight into the most common deadline and time management malpractice errors, and some tips on how you can use technology to reduce your exposure to these types of errors.
Types of Time Management Errors
There are four basic types of time management errors that cause legal malpractice claims. The first three involve missed deadlines.
- A failure to know or ascertain a deadline. This happens when a limitation period was missed because there was no knowledge of the deadline or no effort to determine what the deadline was.
- A failure to calendar. In this case, the limitation period was known, but it was not properly entered in a calendar or tickler system.
- A failure to react to calendar error. In this case, the limitation period was known and entered into a tickler system, but the deadline was missed due to a failure to use or respond to the tickler reminder.
- The fourth type involves procrastination in performance of services, or a lack of follow-up. This error happens when a delay in dealing with a client’s matter causes a loss (e.g., when a delay in the sale of an asset causes it to be sold at lower price) or when the lawyer has initiated something without following up to complete all necessary further steps. An example of this is when a draft will is sent to a client for review, but sits for many months and is not signed before the testator passes away.
Deadline and time management errors are easily preventable with better time management skills and the proper use of tickler systems. Here are some tips on how you can use technology to help avoid a malpractice claim involving missed deadline or poor time management.
- Use a tickler system to track limitation periods and other deadlines. Practically speaking, a formal dedicated system for tracking deadlines will always be better than an informal one (i.e., a lawyer tracking his or her own deadlines in a personal calendar). Further, you may be required to have a paper and/or electronic tickler system by your ethics rules or malpractice carrier. A formal tickler system can help ensure that limitation periods and other critical dates for all matters handled in a law office are collected in a central database that can be used to systematically remind lawyers and staff of upcoming deadlines. Some law offices run two separate and independent tickler systems in case one fails.
- Set target tickler completion dates for a few days before actual deadlines. Setting tickler dates for the very last day something is due virtually guarantees a malpractice claim will occur at some point. While the task will get done on time in most instances, every so often there will be unexpected problems that will prevent deadlines from being met. For example, the signed final affidavit coming from the client via overnight courier might get lost, or the taxi taking it to the courthouse for filing might get stuck in an ice storm and not make it before the court offices close for the day. Don’t do things at the last minute; set ticklers with cushions of several days or more so there is adequate time to complete the task before the deadline.
- Set multiple ticklers for the different milestones involved in completing a task. Breaking a task into smaller parts can help ensure there is time to complete everything by the required deadline. For example, the milestones for completing a client affidavit might be as follows: Send draft affidavit to client four weeks before the deadline; get comments in from client three weeks before; send final draft to client for signing two weeks before; and get final signed affidavit back from client one week before.
- Use Matter Inactivity reports. Procrastination errors happen because lawyers at firms of all sizes seem to have a dusty file or two that sits on the corner of their desks for too long. There can be many reasons for this: a difficult client, a difficult opposing counsel, outstanding accounts receivable or a lack of familiarity of relevant substantive law. While the reasons for dormant files and how to deal with them is beyond the scope of this article, tips or technology that can give a lawyer a friendly nudge or reminder that there is a file that needs attention is not. Many law office time/billing or accounting packages have a matter inactivity report that lists files on which no time has been docketed for a specified period, such as in the last month or in the last quarter. Running this report on a regular basis can help lawyers spot files that are sitting dormant and will serve as a reminder that some work should be done on the file to move it along. Better yet, make it your assistant’s official duty to review this report and pester you to do work on files that have sat too long.
- Enter the full amount of time required for appointments, court hearings, etc. We all know lawyers who call from a cell phone to let you know they are on the way but will be a few minutes late. Don’t be this lawyer. When you enter something in your calendar, be sure to include the full amount of time required. Add time before the allotted appointment time if you need to prep. Otherwise, your clients will not view you as a professional and will not be happy if kept waiting in your reception area for you to finish preparing. For out-of-office appointments, include realistic travel times before and after the appointment.
- Set alarms on calendar appointments or other reminders. When things get busy, you can easily lose track of time and be unaware that the time for an appointment or conference call has arrived. When you create an entry in Outlook or similar calendars, remember that you can also add an alarm that will serve as a reminder that the time for the appointment has arrived. The reminder can be a chime or pop-up window on your desktop and/or an email in your inbox. Alarms can be set to go off at the time the appointment is to commence, or at a pre-set time interval before the start. This can help you to have sufficient prep time for the client meeting.
- Block time in your calendar for larger tasks. The emails and phone calls will never slow down, and larger tasks that require longer periods of time will never get done if you are dealing with constant interruptions. If you have a larger task you must complete, block time for it in your calendar and treat that time as a firm commitment to work on the task, regardless of what else comes up.
- Have a “do not disturb” protocol. When you need an undisturbed block of time, you can prevent interruptions by having a protocol that makes it clear to others you are not to be disturbed. Consider putting your phone on call-forward, closing your office door and perhaps putting a “Do not disturb” sign on it. Make sure the other lawyers and staff at your firm are aware of your protocol and respect it. Make sure your assistant is aware of your protocol and informs callers you are not available. Otherwise, your clients may be needlessly put on hold while you are interrupted and then informed you cannot speak with them. This is poor client relations.
- Use a printout of your daily or weekly calendar. Each morning, consider printing out your daily or weekly calendar. You can use this single sheet to help you track things throughout the day. You can note reminders as things come up; in particular, small tasks that don’t deserve or need a listing on your formal to-do list. At the end of the day, go over the printout to make sure you captured and completed everything that happened that day.
- Hold daily planning meetings with yourself (and your assistant). Start each day by spending a few minutes reviewing your to-do list and calendar for the day. This will help you plan your day in terms of the tasks you need to complete. At the end of the day, review what was completed, and make any necessary updates to your calendar and to-do lists so that everything is captured while it is fresh in your mind. Including your assistant in these meetings can enable both of you to complete the day’s tasks with fewer interruptions.
- Use a draft email to give yourself a reminder. Throughout the day, a small task might come up that you need to deal with, but not until later in the day. Take a few moments to create a new email message and add the relevant notes or information to it. Don’t forget to put a short description in the subject line of the message and save it as a draft message by pressing control and save. You will then have a clear reminder of that task on your screen. If, for some reason, you don’t get to it that day, simply save it as a draft in your drafts email folder, where it is easy to find and deal with tomorrow.
- Use practice management software. To competently serve clients and operate a law practice, a lawyer must handle thousands of tasks on hundreds of matters over the course of a year. While you can use Microsoft Outlook to run your office, practice management software programs such as Amicus Attorney, Time Matters, Clio and similar products are far more powerful. These programs are customized to help lawyers and law office staff manage information and complete tasks specific to a law office. Practice management software programs are “matter-centric,” integrating client information, appointments, deadlines, emails, documents, billings and other information into a single software program so that everyone in an office can access and work on different files with a few mouse clicks. Practice management software can supercharge you and your practice, but it will take time and effort to implement.
There you have it—a dozen practical technology tips to help you avoid deadline and time management malpractice claims. Take the time to understand why these types of errors happen and how you can avoid them. With a bit of effort, you can significantly reduce your exposure to this type of claim.