The Breakdown: When Things Go Wrong

Volume 40 Number 3

By

About the Author

Jim Calloway is director of the Oklahoma Bar Association Management Assistance Program. He publishes the blog Jim Calloway’s Law Practice Tips and produces, with Sharon Nelson, the monthly podcast The Digital Edge: Lawyers and Technology for the LP Division.

Law Practice Magazine | May/June 2014 | The Marketing IssueLAWYERS SPEND A significant amount of their time advising clients about managing risk. They also spend a significant amount of time addressing the consequences of their clients making bad decisions and/or having bad things happen to them.

Lawyers also have a great deal of concern about making a professional mistake and mishandling a client matter or inadvertently creating an ethical breach that could get the lawyer into trouble.

All sorts of things can go wrong. This month we won’t talk about professional liability or ethical breaches but rather things that can go wrong for anybody, including lawyers and law firms. These normal, everyday types of problems can have extreme consequences on law firm operations. A flat tire is an annoyance. A flat tire on the way to an important court hearing can be much more than that.

More than a few lawyers have a reputation for filing pleadings in court on the day they are due or completing important transactional documents right at the last minute. Some might even candidly admit to a little bit of an adrenaline rush when they show up at the courthouse to file an important document 15 minutes before the courthouse closes. But, obviously, we all understand that this is risky behavior and can turn an unexpected illness or automobile accident into a more catastrophic situation.

So, we need to address two levels here: personal habits and law firm institutional planning.

TAKING A LOOK AT YOURSELF
Some people are procrastinators. If that is your personal challenge, focusing on handling it can be a lifelong undertaking. But everyone has to fight procrastination at some point. We’ve all found ourselves watching television or reading something on the Internet while a deadline inexorably approaches. That people tend to avoid doing something uncomfortable or extremely challenging in favor of doing something familiar or pleasurable is understandable. Focusing on the time management techniques mentioned in this column in the March/April issue can certainly help, however.

But many lawyers fall into the trap of working “on deadline” all the time because they want to help others and be of service. So when something crops up demanding immediate attention, it’s easy to think that they can do that new task and still meet the real deadlines for their other work. Recognizing that tendency is the first step to coping with it. If a certain client regularly brings you projects that have to be done immediately, at some point you may have to steel your nerve and discuss this behavior with the client, particularly when the client has known about the potential assignment for some time.

“If you’re early, you’re on time. If you’re on time, you’re late.” This often-repeated statement relating to punctuality can equally be applied to deadlines. It should never be the goal to complete a project on its due date; you’re just setting yourself up for failure. Lawyers live by their calendars. You don’t want to make your calendar unnecessarily crowded, but it may make sense to have a bit of double-entry calendaring. You have to have the absolute deadline on your calendar, but you always want to plan to complete the project earlier. If project XYZ is due on Friday the 5th, the goal should be to complete it on the 2nd or 3rd.

As noted in the March/April column, to-do lists are a much better way to handle project management and deadlines than calendars. But I am a realist and know that deadline-driven lawyers have to have deadlines on their calendars, even if it is a bit illogical. A written to-do list is nonetheless better, whether on paper on your desk or easily found in your digital tools, for guiding someone who may have to cover for you if you’re unexpectedly indisposed.

“Under-promise and over-deliver” is another cliché that bears repeating here. When you set arbitrary deadlines for yourself or make commitments for delivery of projects to clients, it’s always a good plan to build in a little extra time. If you believe you will complete it Thursday, say you will get it done on Friday. This is good for client relations and reduces lawyer stress. And it will be an incredible blessing for anyone attempting to cover for you when you are sidelined.

Note that solo practitioners, especially those without staff, have particular challenges in this regard. Someone has to be designated to step in if an emergency arises, and he or she also has to be given the tools to be able to assist. This includes keys to the office and a way to locate passwords to get into the computer system. Finding a person to serve in this role is a challenge. While one’s spouse might seem a logical choice, if a lawyer has a serious or life-threatening medical problem, the spouse is unlikely to focus on worrying about meeting an important court deadline. Therefore solo practitioners often enter into “buddy agreements,” in which each lawyer agrees to step in to help the other in the event of an emergency. Many state bar associations offer guides for protecting clients in the event of a lawyer’s death or disability.

The bottom line is that for someone to cover for you effectively in the case of an unexpected absence or emergency, you must spend some time planning for that emergency. This is true for individual lawyers as well as firms.

THE LAW FIRM BUSINESS CONTINUITY PLAN
While an individual lawyer might be lucky and not have an unexpected absence from work for years (or even decades), within larger law firms it’s a virtual certainty—and regular, too. Law firms must plan for the unexpected absences of lawyers and employees, along with many other types of contingencies. Cross-training for mission-critical tasks is very important. If only one person in your office knows how to do a critical task, address that immediately.

Every law firm should have a business continuity plan. It must be formal and in writing. It should be reviewed and updated periodically. How long has it been since you last looked at your business continuity plan?

You must ask yourself, What is the essential core of your practice that absolutely, positively must remain operational? Then review the potential types of disasters and what your responses would be to each. You must also keep the following in mind:

  • Draft your plan. Write it in plain English that will be easily understood by panicked, stressed-out people who have just experienced a disaster.
  • Diversify your options. In other words, have backup plans for your backup plans. Anticipate Murphy’s Law, and don’t put all your disaster recovery eggs in one basket.
  • Plan for failure. Not unlike advising a client to always plan for litigation, build redundancy into your technology systems, fully expecting digital disasters to hit.
  • Conduct fire drills. You have to take your plan seriously and conduct drills on a regular basis. This should be done at least annually and perhaps more frequently, especially if you have a number of new employees. Disasters, both small and large, generate stress. You cannot expect people to follow the plan well if the last time they thought about it was five or six years previously.

The ABA Committee on Disaster Response and Preparedness has resources available online to help law firms prepare business continuity plans (americanbar.org/groups/committees/disaster). Of particular note are the free downloadable e-book A Lawyer’s Guide to Disaster Planning and an award-winning video for online viewing.

CONCLUSION
The one law that lawyers cannot have declared invalid by a court or ask the legislature to repeal is Murphy’s Law. Unexpected bad things will happen. It is up to you to make sure that they do not negatively affect your clients or your law practice. Advance preparation is the only solution.

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