Scheduling Errors and Legal Malpractice

Scheduling errors are the root cause of many legal malpractice claims. It is common to think of scheduling errors as just missed deadlines, but such errors should also be thought of as failures to plan sufficient time to perform work. This article will look at the nature of scheduling errors in legal malpractice claims, and suggest practical methods for avoiding such claims.

An ABA study of legal malpractice claims outlines the different ways that poor scheduling can cause legal malpractice claims. Profile of Legal Malpractice Claims 1996-1999 (American Bar Association Standing Committee on Lawyers’ Professional Liability 2001). For the period of 1996-1999, simple failure to calendar a known deadline was listed as the primary cause of 7.03% of claims. A failure to react to a calendared date caused 1.27% of claims. Procrastination in performance was listed as the cause of 4.95% of claims. Taken together, these clearly identifiable administrative scheduling errors were the primary cause of 13.25% of all claims. Among substantive errors, 15.24% of claims were classified as failure to know or to ascertain deadlines. The administrative and substantive scheduling related errors in the ABA study combined accounted for 28.49% of all legal malpractice claims.

It is highly likely that scheduling related errors were contributory factors rather than primary causes of errors in many more claims: an unorganized, overcommitted, rushed lawyer is more likely to make mistakes. Given the significance of scheduling related malpractice claims, techniques for avoiding such problems are discussed below.

GETTING THE RIGHT DATES

We are frequently asked by the developers of scheduling systems to provide a credit if our insureds will buy their system. The ABA study shows that administrative errors related to scheduling decreased from earlier levels, while claims involving procrastination and failure to react to a calendar increased. In other words, a good system only avoids claims if it is used properly. Before reviewing the mechanics of a good scheduling system, several important points about how to determine dates to enter will be discussed.

Failure to know or ascertain deadlines is a significant cause of claims. One type of missed deadline based on such a substantive error is when the lawyer is working with the law in an unfamiliar jurisdiction or in an unfamiliar area of law. For example, Louisiana has two statutes of limitation that apply to most cases: a one year statute (most torts) and a ten year statute (most contracts). These are quite different from the general (but not always applicable) Texas two-year tort and four-year contract limitation periods. Libel and slander in Texas are exceptions to the general rule, with a one-year statute of limitation. Tex. Civ. Prac. & Rem. Code §16.002. Tort claims against governmental units must be filed within six months of the incident giving rise to a claim. Tex. Civ. Prac. & Rem. Code §101.101. A 60 day pre-suit notice is required in medical malpractice claims. Tex. Civ. Stat. Ann. 4590i.

While these types of substantive deadlines may sneak up on any lawyer, they are often caused by a more fundamental weakness in the lawyer’s practice. Sufficient lead time to investigate both the facts and the law must be set aside early in the representation of clients. When an attorney assumes that the statute of limitations will run on a certain date based on preliminary information without reviewing the evidence and law more thoroughly, the chance of missing deadlines increases.

Lawyers often rely on client provided statements rather than reviewing corroborating documents that will be important when the case is evaluated by the judicial system. For example, if a client tells the attorney that an accident occurred on a certain date, police reports and hospital records should be reviewed early to assure that the client has provided the correct date. The identity of opposing parties should be reconfirmed as well. We see a lot of claims where lawyers fail to analyze such documents until very close to what they thought was the deadline. Such documents are best analyzed immediately after the client first approaches the lawyer, not almost two years later. Filing suit long before the statute of limitations date avoids potentially invalid service after the limitations period.

Scheduling used to be called “docket control.” Office practitioners have scheduling needs just as critical as litigation specialists with a docket. Scheduling systems can help any lawyer evaluate whether they have the time to devote to a new matter and set up “soft” deadlines which will permit early identification of “hard” deadlines. Making only one schedule entry for a file is almost always insufficient.

To assure sufficient lead time, scheduling should include a countdown of time remaining before a required action. For example, when a document needs to be completed by a certain date, a lawyer may choose to include both a two week and one week until due schedule entry. Of course, the number of appropriate reminders and the amount of time needed can vary with the type of task and matter.

Suggested Scheduled Warnings to Allow Lead Time

Statutes of Limitation:

Three months

Two months

One month

Limitation date

Answers and Other Litigation Responses:

Fifteen days

Ten days

Five days

Due date

Meetings and Hearings:

A date to on which to begin preparation

The day before the meeting or hearing

The date of meeting or hearing

Adapted from: Gerry Malone, The Malpractice Crisis: What Can You Do About It? The Docket (March April 1987).

Every file should have at least one schedule entry. If it doesn’t, it should be closed and the client should be told that the attorney will not be doing any further work on the matter. If there is no hard deadline, the client may lose patience with their lawyer for failing to take action. If the attorney is waiting for another event before taking action, the lawyer should set a date to check on whether the event has occurred and, if appropriate, to communicate to the client the reason that the lawyer has not taken action. While the ABA statistics do not quantify how many claims arise from client feelings of neglect, the most common grievance complaint is of neglect. See Constance Miller, CAAP: The Frontline Approach to Public Complaints, TLIE Advisory Issue 1, 2001.

MECHANICS OF SCHEDULING

Once the types of entries required for good scheduling are appreciated, the mechanics of scheduling can be properly analyzed. Regardless of the precise method of scheduling that is used by a lawyer or firm, several concepts are critical to proper scheduling.

Dates must be entered as soon as they are appreciated. Delay in entry makes it more likely that the deadline will be forgotten.

When an attorney has assistants, having separate calendars requiring multiple entries acts as a check to prevent simple entry errors. Reversed month and date, incorrect year at the beginning of the new year, and choosing the wrong week are common errors.

Backups of the schedule avoid disaster. Dual entry often provides a backup, but if the two entries are made by the same person or on the same computer, the backup may not be sufficient.

Entry of certain types of scheduling dates should always trigger the entry of lead time and consequential schedule dates.

Before computers became significant in law practices, paper based calendar systems were developed by most firms to track critical dates. A paper calendar can still be an important component of a modern system. Lawyers and assistants who use paper day planners in addition to a firm mandated scheduling system have met the requirement of separate calendars requiring multiple entry, and provide a low tech “backup” for scheduling software.

Many lawyers and assistants now use a personal calendaring program on their PC, such as Outlook. Outlook can provide a powerful calendaring system that allows for sharing of calendars among groups of persons in the law firm. In addition, Outlook can be synchronized with a PDA such as a Palm or PocketPC to allow a lawyer or assistant to always have their computerized calendar with them. This permits immediate entry of deadlines anywhere in or out of the office so as to avoid the problems with delayed entry. Backup of the calendar on a separate device is another plus of using PDAs.

Personal calendars, whether paper or computerized, do not automatically enter lead times and consequential dates. The human tendency is to enter the clear deadline and to leave planning until later. Case management software can help solve this problem. In many of the case management software packages, it is possible to create automatic entry of dates based upon the entry of a certain type of deadline. For example, entering just a trial date can trigger automated entry of dates such as discovery and standard motion deadlines as well as typical lead time needed for work. Such software requires intense scrutiny to assure that state specific deadlines are included and that it allows sufficient flexibility to vary deadlines with circumstances. AbacusLaw is an example of software with extensive automated scheduling capability. See http://www.abacuslaw.com/products/professional-services. Case management software may permit export of dates to computerized personal calendars. See http://www.abacuslaw.com/products/abacus-private-cloud/use-any-device-anywhere.

Management Software

Centralized calendaring requirements are critical for a firm with more than one lawyer. When one lawyer misses a deadline, the law firm is liable, and other lawyers in the firm often are personally liable. The nature of a law practice is such, however, that it is difficult to enforce use of a single calendar system that applies to every matter in a law firm. Each section of the firm often identifies software particularly suited to the nature of its practice. Case management software for bankruptcy may differ greatly from other litigation case management software, for example. Firm members’ differing levels of familiarity with computer software may further discourage the use of a common firm-wide calendaring system.

Central calendars can be designed to allow import of data from personal calendars and case management software. Even if the firm decides that it must let each section use its own calendaring software, firm management should review the calendaring procedures of each attorney or section of the firm. Management should develop a core set of firm-wide calendaring policies. These core requirements for central calendaring can be taken into account in choosing a firm-wide mandatory calendaring system. Use of the required firm wide calendaring policies can be enforced at certain key events.

Entry of some deadlines and schedule dates can be required when a file is opened. One particularly effective tool to enforce scheduling and other file opening requirements is to prevent use of the billing system prior to meeting certain required steps, such as initial scheduling. Intake forms should have blanks for key dates common in a particular area of practice. Another important point at which deadlines can be entered is when mail is opened. Some deadlines will be explicitly set out in correspondence or triggered by dates of service in mail. Such deadlines can be entered in a central calendar by clerks prior to the distribution of mail.

Critical to the maintenance of any system in the law firm is a procedure for analyzing new needs and errors. All firm members must continually consider gaps in the calendaring system that could be closed. As the law changes, scheduling systems must be modified. When a mistake occurs, the system should be analyzed to determine if changes in the system could avoid the mistake in the future.

By Jett Hanna