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May 22, 2018 Articles

Taking the Time to Ensure You Don’t Miss Deadlines: Standardized Policies and Procedures for Calendar Management and Ten Considerations to Get You Started

Technology, imprecision, and unclear division of responsibility can lead to disaster. Adopting standardized policies and procedures is the key to ensuring that you don’t miss important deadlines

by Jason A. Landro

Imagine it’s 8:00 a.m., and you’re about to leave your house for an all-day deposition. As you step outside, you grab your cell phone, check your email, and open your calendar for the week. Then . . . your heart drops: Today is the filing deadline for summary judgment motions in one of your cases that has been dormant the past four months. After yelling a few choice words at your cell phone, you ask yourself: How did this happen? Why didn’t I get a reminder? Or did I? How am I ever going to draft a motion in time?

Many attorneys have encountered scenarios like that one. Others have missed deadlines altogether. Every litigator knows that tracking and meeting court-imposed deadlines is vitally important, but such errors still occur far too often. In fact, failing to calendar a deadline and failing to know or ascertain the deadline correctly are two of the most common types of errors alleged in legal malpractice claims. See Am. Bar Ass’n Standing Comm. on Lawyers’ Prof’l Liability, Profile of Legal Malpractice Claims 2012–2015, at 18 (2016–2017).

These problems often result from one of the two following causes: (1) a firm fails to implement adequate processes to avoid calendaring mishaps or (2) firm personnel fail to comply with adequately designed processes. There is no foolproof way to prevent calendaring errors. The risks can be minimized, however, by developing standardized policies and procedures for calendar management that account for modern workplace technology. To be effective, the policies and procedures must be taught and followed throughout the organization. This article explores the benefits of adopting standardized policies and procedures for managing deadlines and the role technology plays in that process, and it offers 10 important guidelines and issues for you to consider when drafting, adopting, and implementing such policies and procedures.

Standardization Promotes Uniform Expectations and Prevents Errors
By adopting and implementing written standardized policies and procedures for calendar management, a firm harmonizes the collective expectations of the staff and attorneys. It's best to establish a coordinated system in which each person up and down the chain of command knows his or her role and the responsibilities of every other person. Such a clear division of responsibility also introduces checks and balances and empowers subordinates to remind superiors of their own calendaring responsibilities.

In today’s world, attorneys and support staff are often separated by thousands of miles and frequently work together on litigation matters in tribunals with vastly differing notice and calendar-management procedures. Without a standardized approach, deadlines can easily fall through the cracks. Consider the following example: Multiple attorneys from different offices of the same law firm appear in a case with a high volume of filings. The attorneys and their assistants never identify who will be responsible for reading each notice, let alone calendaring the deadlines. Instead, the attorneys and assistants arbitrarily review and calendar the applicable deadlines, assuming that one of their other colleagues is managing the calendar. Where each person thinks another person either will complete or has completed the task (akin to the bystander effect), there is a substantial risk that no one will create a necessary calendar entry. See John M. Darley & Bibb Latané, “Bystander Intervention in Emergencies: Diffusion of Responsibility,” 8 J. Personality & Soc. Psychol. No. 4, 377–83 (1968) (The article analyzes the bystander effect, a phenomenon in which individuals do not offer help in an emergency when other people are present, and as the number of bystanders increases, the likelihood of anyone offering help decreases.).

Lack of standardization invites confusion and error beyond merely blowing the deadline. Without adequate standards, attorneys and staff are apt to follow varying naming conventions and procedures for creating calendar entries, leading to imprecision, ambiguity, and confusion. Consequently, an attorney responsible for a filing may misinterpret a given calendar entry as a reminder instead of a deadline or may fail to appear for a hearing because he or she misunderstood which of several attorneys on the case was responsible for attending the hearing. Likewise, when a judge issues multiple scheduling orders and the old deadlines are not properly removed or modified, an attorney could comply with a false deadline, potentially leading to adverse consequences. Even worse, the attorney could disregard a deadline if he or she mistakenly believes that deadline has been superseded by the most recent scheduling order. A standardized approach, where everyone employs the same procedures and follows the same naming and formatting conventions, greatly minimizes the risk of such confusion and error.

The added practical benefit to uniformity is that it provides a safety net for unforeseen scenarios that are not otherwise addressed by individualized, informal customs. For instance, when a firm designates substitutes for every calendar manager in preparation for any calendar manager’s absence, every substitute should be able to seamlessly fulfill any absentee’s calendar-management responsibilities.

That added practical benefit is also manifested when attorneys join or depart law firms. By employing a standardized approach, the people responsible for transitioning cases will know which tasks must be completed, especially if a list of those tasks is memorialized in writing as part of the policies and procedures. For instance, whenever an attorney changes firms, that attorney will need to address a list of tasks, including updating electronic filing and state licensing accounts, filing withdrawals or entries of appearances, and adding or removing calendar deadlines. Without a standardized approach, one of these important tasks could be missed or completed too late, inviting devastating results.

A lawyer and his firm learned that lesson the hard way in Communications Network International v. MCI WorldCom Communications, 708 F.3d 327 (2d Cir. 2013). In that case, an attorney failed to update his email contact information after changing firms and, as a result, did not receive notice of a judgment. Consequently, the attorney failed to file a timely appeal, a jurisdictional error. Although the district court tried to show sympathy, forgiving the late filing as “excusable neglect,” the Second Circuit reversed, holding that “[t]he failure to receive Civil Rule 77(d) notice [of the entry of judgment] was entirely and indefensibly a problem of its counsel’s making. . . .” Id. at 340.

Standardized processes also provide an added empirical benefit: It’s easier to identify and correct potential weaknesses in the processes when they are simultaneously employed and tested by everyone. If each attorney within a firm employs a different calendaring system, each system is being tested only by that attorney and that attorney’s subordinates. Another benefit of standardized processes is that issues with or changes to the policies and procedures will be reported earlier than in a non-standardized system. As a result, updates or changes can be implemented sooner, further minimizing the risk of error.

Policies and Procedures Must Account for Modern Technological Realities
Many attorneys and law firms have not modernized their approach to calendar management to address the fact that attorneys primarily use electronic communications and e-calendars. Many firms still adhere to an antiquated policy in which an administrative assistant enters deadlines on his or her attorney’s calendar after the assistant reviews the daily mail or receives an e-filing notice. That practice is outdated and insufficient.

For instance, today many attorneys and their assistants work with their colleagues in other locations on the same case. When many attorneys and staff collaborate on a single case, regardless of location, the antiquated policy fails: There is a high risk that assistants will duplicate tasks or that no one will create a requisite calendar entry because each person assumes someone else has created an entry.

Furthermore, attorneys constantly receive communications and documents related to deadlines via email, which was not the case when mail was the primary mode of correspondence and was typically delivered only once or twice per weekday. As a result, policies and procedures must require attorneys to promptly forward relevant emails to the designated calendar manager for each case. Otherwise, there is no way to ensure that all necessary calendar entries will be created.

While many attorneys copy their assistants on all e-filing notices and emails, there is no way to guarantee that an attorney’s assistant or other attorneys working on a case will always be copied on all case-related emails. It is risky, if not naive, for an attorney to expect an assistant to identify every deadline that must be calendared and to properly calendar every deadline without active assistance or follow-up from the attorney.

A firm’s policies and procedures also should account for the adverse consequences of recent technological advances. For example, electronic calendar entries can be deleted with the accidental push of a button, and the likelihood of inadvertent data alteration increases as more users are granted administrative rights to the calendaring system. Likewise, when an attorney uses more than one electronic calendar, an error is more likely to occur.

Another example of a potentially adverse consequence of modern technology is where an email containing an important deadline is automatically routed to a junk email folder, which could result in a missed deadline if the recipient does not frequently and regularly check that folder. Courts have not been forgiving when attorneys have claimed they missed a deadline because they did not receive a court-generated electronic notice, regardless of the excuse. For instance, in Gibson-Michaels v. Bair, 255 F.R.D. 306 (D.C. Cir. 2009), a plaintiff sought relief from an order granting the defendants’ motion to dismiss as conceded under the local court rules. The plaintiff claimed she failed to respond because her counsel did not receive the court-generated electronic notices related to the defendants’ motion. In denying the plaintiff’s motion, the court held that plaintiff’s counsel had an affirmative duty to stay apprised of the status of the case by monitoring the docket and that “[a] claim that notice was not received [wa]s insufficient grounds for avoiding the penalty authorized by the [local] rule.” Id. at 307. As a result, the court held that it could not conclude that the plaintiff’s failure to affirmatively check the docket was excusable. See id.

Ten Considerations for Formulating Standardized Policies and Procedures
There is no one-size-fits-all approach for calendar management. Law firms and practices differ markedly in size, type, staff, and more, making it difficult to dictate an optimal set of rules. Nevertheless, each attorney and firm should consider the following 10 suggestions and issues when constructing calendar-related policies and procedures:

  1. Create a committee. There should be a committee (or person) in charge of drafting, implementing, and updating calendaring policies and procedures. The committee should include at least one staff member and one junior attorney, who are primarily responsible for managing the practical calendar-management challenges. Alternatively, the committee should have at least one liaison from each group.
  2. Strive to adopt manageable and easily digestible policies and procedures. The firm’s policies and procedures need to be straightforward, easily accessible, contained in one document, and applied to all employees with litigation responsibilities.
  3. Create channels for reporting problems and asking questions. The policies and procedures should contain a designated person or email address to which all employees may report problems or submit suggestions, questions, or concerns regarding the policies and procedures. Attorneys should encourage their staff to ask their supervising attorneys questions when unsure of how to calendar or calculate a deadline. If a staff member is afraid to ask for help, there is a risk that the staff member will make an incorrect educated guess or estimate in order to complete a task.
  4. Standardize the formulation of calendar entries. Law firms should adopt a standardized naming convention that requires each calendar entry to follow a specified format (e.g., [plaintiff’s name]: [description of event] [initials of the attorney responsible for attending, if applicable] or [plaintiff’s name] v. [defendant’s name]: Deadline to File [description of filing]). In addition, law firms should consider whether to adopt detailed instructions for creating entries such as mandating that filing deadlines are created as all-day events and entries for daily events are scheduled for the anticipated length of the event. Alternatively, a firm should consider whether to adopt more general rules that apply to all entries such as mandating that entries related to a Case Management/Electronic Case Files (CM/ECF) notice include the docket text from that notice in the calendar-entry notes or include the notice as an attachment. Another important example of a general rule is to require each entry for a litigation event (e.g., deposition, trial, or hearing) or meeting to contain the complete address, including the room number, of the location of the event or meeting. The policies and procedures ought to mandate which events require a calendar entry or a reminder. Again, the level of specificity will be dictated by the nature, size, and needs of the firm.
  5. Delineate calendar-management responsibilities. The policies and procedures should address who is responsible for creating entries, how to address a scenario where multiple people share the same calendar-management responsibilities for a single case, and what to do in the event a person with calendar-management responsibilities is absent. The policies and procedures should contain a to-do list of calendar-related tasks for staff and attorneys to consult when an attorney joins or leaves the firm.
  6. Restrict the number of calendars. Law firms should adopt policies that restrict or prohibit attorneys from simultaneously using multiple electronic calendars to manage deadlines. In addition, law firms should consider whether to mandate that all attorneys and staff use certain software for maintaining a calendar.
  7. Choose user-friendly and reliable calendar-management software. If a law firm mandates that all attorneys and staff use certain software for calendar management, that software should be web-based so that calendar changes automatically synchronize across all devices. Moreover, the firm should ensure that software is easy to use on all commonly available devices (e.g., computers, tablets, cell phones).
  8. Require attorney accountability. The policies and procedures should ensure that deadline-related information contained in emails is provided to the calendar manager in a timely fashion. Attorneys should be required to grant permission to at least two other people to view their electronic calendars, preferably the person who primarily manages each attorney’s calendar and that person’s substitute.
  9. Create procedures for modifications. Law firms should adopt a policy that addresses deleting and changing calendar entries to ensure that deadlines are not inadvertently erased and that extensions or modifications are noted appropriately.
  10. Review the policies and procedures annually. The policies and procedures should be reviewed annually to ensure that they are adequate and current.

Although the process of adopting and implementing standardized policies and procedures might be initially time-consuming, it’s worth the investment. In addition, after you draft and implement the policies and procedures, only relatively limited maintenance will be required going forward. If nothing else, the time and resources that you devote to drafting and implementing policies and procedures for your calendar management will pay for themselves by minimizing the risk of malpractice claims. That, in turn, will optimize your chances of keeping business. Therefore, it’s worth taking the time to ensure you don’t miss deadlines.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).