WILMIC News & Risk Management Articles

Frequent Mistakes May Be the Most Preventable Way to Avoid Malpractice

There isn’t one right way to be a lawyer. It is called the “practice of law” for a reason. As a lawyer, you’re looking for the best fit for each client, the best strategy and the best solution. To do all that, there are plenty of obstacles that even the best lawyers sometimes have difficulty avoiding.

While mistakes can occur and things can happen with little or no warning, understanding the most common mistakes lawyers make and where the risks are can help you avoid those mistakes and risks, and reduce the chances of a malpractice claim.

Malpractice Claims Do Not Discriminate

They happen to all types of attorneys in all different age groups and stages of practice. However, there are trends.

According to statistics compiled by Wisconsin Lawyers Mutual Insurance Company:

Newer lawyers are targeted for a malpractice claim at a much lower rate than more experienced lawyers. Ten percent of WILMIC claims were made against lawyers in their first five years of practice, compared to 30 percent against lawyers who have been in practice 10 to 20 years.

Dabbling is very risky. Roughly 45 percent of all claims involve areas of practice in which lawyers practice less than 10 percent of the time.

The riskiest areas of practice, statistically, are:

  • Plaintiffs’ personal injury
  • Real estate
  • Bankruptcy and collections
  • Estate, trust and probate and
  • Family law

For the past 30 years, plaintiff personal injury work generated more claims than any other area of practice. That has changed in the past couple years. Now, bankruptcy and collections work, as well as estate planning top the list of areas of practice with the most claims.

What Kind of Errors are Common?

Not Calendaring

Attorneys sometimes fail to properly calendar something. Or when they do, they procrastinate and fail to get something done in a timely manner. Procrastination is something we see quite often in claims. If lawyers could stay ahead of their calendars, they would avoid many of the mistakes that get them into trouble.

Lawyers Miss a Deadline for a Number of Reasons

They may have procrastinated, or maybe they are overwhelmed by their workload, causing something to fall through the cracks. Or maybe they have a bad calendaring system.

Choice of Procedure

Another common mistake is planning errors in choice of procedure. Knowing the law isn’t enough. Lawyers need to identify the right issues to get to the right solutions. And framing the legal question properly goes a long way to good representation for the client.

Client Goals and Writing a Good Engagement Letter

Identifying the client’s goals makes a difference too. The client may not know enough to ask about other options. A lawyer should be in a position to explain the benefits and drawbacks so the client can make an informed decision.

Identifying the client’s goals in writing can allow the client and the lawyer to discover other issues that need to be addressed. The letter also makes clear what the lawyer believes needs to be done to accomplish the defined goals.

“Inadequate discovery and Investigation”

A third common mistake is “inadequate discovery and investigation.” All lawyers have had clients who don’t want them to spend too much time on the case in an effort to save on fees. Sometimes a complete and thorough investigation is not done because the lawyer is too busy and trusts the client to provide all the information needed for the case. This can lead to serious problems down the road, both for the client and the lawyer.

If you’re willing to take a case, be committed enough to do it well, and include investigating and verifying the facts. Can’t make that commitment? You should strongly consider not taking the case.

Failure to Communicate

The mistake that may be among the most important, is failing to communicate effectively with your client. If communication between a lawyer and his or her client suffers, the risk of a malpractice claim soars.

Lack of good communication with your client may be the easiest mistake to prevent. Great client communication practices are the best insulation a lawyer has from claims and grievances. It is also invaluable in the defense of a legal malpractice claim.