Effective calendaring and email systems prevent claims Whoops – Legal Malpractice Prevention
Computers and technology have changed every aspect of the modern law practice. Email, for instance, has completely transformed the practice of law. Electronic communication is instantaneous, continuous, and ubiquitous. It is difficult even to compare today’s law practice with that of just a few years ago. Correspondingly, the risks associated with the practice of law also have changed. The e-revolution has brought with it new hazards for attorneys.
Despite the many electronic tools available to attorneys, calendaring mistakes and administrative errors continue to dominate the types of problems that generate legal malpractice claims.1 According to some surveys, the second-largest category for such claims involves procedural errors, which include missed deadlines and time management mistakes.2 This is true regardless of the area of practice, the size of the law firm, or how long the attorney has been practicing. As the pace of the modern law practice accelerates, the need for effective calendar control and reminder systems increases.
The Reminder System of Yore
Before the emergence of email, one of the most common reminder systems for attorneys was the “pile” system. Generally speaking, this calendaring system involved piles of paper strategically placed around the law office to establish priorities and to remind attorneys what needed to be done and in what order. Although familiar to most seasoned practitioners, it can probably best be described as follows: Files in the pile on the credenza or on the desk needed to be looked at sometime this week. Files in the pile on the desk needed attention today or tomorrow. Files on the attorney’s chair (so as to be physically unavoidable) required immediate action. On the other end of the spectrum, if a file was in a file cabinet, it was out of sight and, in many cases, out of mind.
The problem with this system was that it was least efficient when attorneys needed it the most. During the most hectic times—when the attorney would benefit most from a reminder system—the piles were so big and so scattered that they overwhelmed the attorney. Malpractice risks abounded as the number of claims from missed deadlines grew.3
Technology to the Rescue?
One might guess that computers, state-of-the-art software, and email fixed the problem by eliminating the stacks of paper. Unfortunately, this hasn’t been the case. Although the new electronic tools showed promise for helping attorneys create an orderly to-do list, over time, the inbox succumbed to the perils of the old pile reminder system. Instead of replacing files stacked around the office, email created a whole new set of piling opportunities, with the newest pile being messages in the inbox.
Initially, the inbox seemed appealing because it consolidated the piles into one place, through a single list, and thus felt more manageable than the stacks of files. However, the inbox came with an even bigger problem: It has no physical limitation as to how big it can get. And so the electronic piles just got bigger and bigger—eventually becoming unwieldy and not very helpful. As this transformation unfolded, inboxes stopped having any meaningful use as a reminder system.
Unchecked, the overloaded inbox is even more dangerous than the old paper piles. As attorneys get busier, they have less and less time to process emails and move them out of the inbox. With less time to process the emails, items are left in the inbox as reminders for action that needs to be taken. Rather than making things more efficient, accumulating unprocessed emails means more and more messages collect in the inbox with less and less time to act on them.
The intersection of too little time and too many emails often results in a high level of stress and a high risk of committing legal malpractice. As an operational matter, like the paper pile system before it, the overcrowded email inbox system typically requires the most time of any of the attorney’s administrative tasks when the attorney has the least amount of time to devote to it. Not surprisingly, with heightened stress on the attorney and the system, the risk of missed deadlines and time management errors increases exponentially.
Two Surprising but Simple Solutions
The most effective solutions seem harsh for attorneys dependent on email and the inbox. However, the alternative is a growing risk almost certain to lead to a missed deadline. Here are two solutions that have proven effective: (1) adopt a computer-enforced system deadline after which items are automatically deleted from the inbox, or (2) create a numerical limit for the number of emails in the inbox.
System rules that automatically delete or remove items from the inbox upon the expiration of a set time period (such as 60 days) have proven quite effective. The standardized deadline forces attorneys to either process the email or move the item into a folder. Just leaving an email for another day is not an option. Not surprisingly, most attorneys (reluctant to give up their electronic pile) insist that such automatic deletions after a set number of days only increase the risk because items requiring action would disappear. In practice, however, the system deletions have had a different result: With a system-enforced deadline, many attorneys have changed their practice habits and how they process emails, while increasing the use of calendar-based reminder systems.
This system-enforced deadline tool aids attorneys with their time management by forcing them to address emails promptly rather than allowing the messages to sit unprocessed. Over time, this practice reduces the volume of emails in an attorney’s inbox at any given moment, making it less time-consuming and easier for the attorney to process emails because there are fewer emails to process. Thus, a system-enforced numerical limit keeps the pile manageable and reduces the risk that the attorney will commit malpractice.
Don’t Hit the Tipping Point
Of course, there is another option—just let the electronic piles continue to grow and wait for things to topple. However, your clients and your malpractice carrier do not recommend this chaotic management style.
1. See Ames & Gough Insurer Survey, “Lawyers’ Professional Liability Claims Trends: 2014” at 4 (2014).
2. See, e.g., id.
3. See Pinnington, “The Most Common Legal Malpractice Claims by Type of Alleged Error,” Law Practice (July/Aug. 2010), www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_maga zine_webonly_webonly07101.html.