Practice Management Strategies Part 17 Substantive Law, Procrastination, and Referrals
Be prepared and do your homework – The root cause of most professional liability claims that relate to alleged errors relative to substantive law involve inadequate investigation, evaluation, and preparation for trial. Most often, this kind of lack of preparation is an inevitable by-product of under-resourcing or under-staffing. Due to this factor and time pressures, lawyers may fail to conduct or prepare for discovery, may fail to conduct a sufficient background investigation, or may otherwise be unprepared for trial.
These types of errors can tend to be very serious if a professional liability claim is brought, since they usually are material and are relatively easy to prove in the sense that it is usually not hard to retrospectively determine and document what happened.
Make sure you adequately research and know the law – Failure to “know the law” as demonstrated by oversight of key cases or recent trends or developments in the law also can be a fatal error from a professional liability standpoint. If you outsource important legal research or delegate it to inexperienced paralegals or law students, you create a much higher risk of an error or oversight being made.
Avoid procrastinating – In the retrospective review of professional liability claims, procrastination rarely is identifiable as a factor. However, unreasonable delays as a direct product of procrastination are a root cause of many malpractice claims.
At the outset, some matters seem so complex or burdensome that there is a natural tendency to be overwhelmed. The way to approach this challenge is to “chunk down” a project into a processional series of smaller, manageable tasks, and then get started by immediately taking the first small step.
Refer those legal matters that you do not have the expertise to handle – It is estim ated that approximately one-third of all professional liability claims involve lawyers practicing in an area that is outside their core of expertise.
If a lawyer does not have the experience or specialized expertise to handle a particular matter, it is recommended that that she/he refer the matter to a lawyer who specializes in that type of case.
Be careful to whom you refer clients – Once you decide to refer a prospective client to another lawyer, make sure that you are comfortable with that lawyer, and confident that the lawyer will properly handle the matter. If you refer a matter to a lawyer who fails to perform at an appropriate level, you may be legally liable under a theory of “negligent referral.”
In one case, a lawyer referred a client to a lawyer in another state whom he knew about only based on the fact that the referred lawyer was listed in a legal directory. The referring lawyer was unaware that the out-of-state lawyer was under a pending indictment for theft of client funds. The out-of-state lawyer then stole the client’s funds.
The referring lawyer ended up being legally liable for the loss under a theory of “negligent referral” for failure to exercise a reasonable level of care and skill when referring the client to another attorney.
When you make an actual referral, an additional safeguard is to refer more than one competent lawyer to a client. This is an important distinction, since in this setting, clients have to choose which lawyer to retain rather than just alleging that they blindly followed your limited referral advice. ±
Disclaimer: “Perspectives” is published as a service to lawyers. While the information contained herein is believed to be reliable, readers are advised to consult their own legal and insurance counsel for assistance in applying it to their unique situations.
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