WILMIC News & Risk Management Articles

Malpractice Trends: Claims Decline with Proper Technology Use

Risk Management

Technology has been evolving for many years, but the rapid pace of technological developments probably has had the greatest impact on the practice of law in the past decade or so. Almost all offices are computerized, with software programs for just about any task a lawyer or staff person may encounter. Case management and timekeeping programs, Excel spreadsheets, email, cell phones, and other modern-day technologies have made it easier to practice law in and out of the office, on the road, and in the courtroom. Technology, of course, has spawned great innovation in the legal profession. A lawyer can practice law away from the office almost as efficiently as within it.

These innovations are all, by anyone’s measure, great tools for a law practice. In many situations, lawyers can do things better and faster, and with less risk of error. The most recent statistics on claims support that notion. But lawyers must still be aware of risk. If technology is not used properly, or if lawyers’ record-keeping is sloppy, a malpractice claim might be just around the corner.

Administrative Errors Down

The good news: According to a national study just released by the American Bar Association, there was a 7 percent decline in recent legal malpractice claims involving administrative errors, compared to the previous study in 2011. Technology advancements and their ease of use may be contributing to that decline. Administrative errors include procrastination, failing to calendar events properly, failing to take timely action related to a scheduled event, clerical errors, failing to file documents on time, and even losing files.

Meanwhile, of all the malpractice claims in 2015 against lawyers insured by Wisconsin Lawyers Mutual Insurance Co. (WILMIC), a little less than 25 percent result from administrative errors. That’s down slightly from 2011.

Tom Schumacher, of Bakke Norman in New Richmond, says that over the last 15 years, time management, calendaring, and file storage have improved significantly. “Not only are the software programs better, but more lawyers are using them. Fifteen years ago, the profession was slow in embracing some of the technology changes. Innovative uses of technology were still in their infancy, especially when it came to law firms. But now, more and more lawyers are using technology to help them with these tasks. What was an exception 15 years ago, is the rule today.”

Brian Anderson, WILMIC senior claims attorney, says that whether or not a lawyer has a good administrative system, the first thing lawyers must do is make sure they are proactive. “We see malpractice claims time and again from attorneys who take a case but wait to investigate, pursue the case, or file an action, or simply take a case late in the game and run into deadline issues.” He says the first problem lawyers run into if they don’t act promptly is missing filing deadlines. This can be caused by simple oversight, waiting for supporting records, naming or serving the wrong party without enough time to amend, or finding out it’s too late to act when special circumstances arise. Simply put, “good things do not come to attorneys who wait,” says Anderson.

Garbage In, Garbage Out

Whatever scheduling and administrative system exists in a lawyer’s office, it works only as well as the people who operate it. Schumacher says, “If you don’t use your systems properly or efficiently, they won’t help you. Unless you keep up with data entry or have someone who does that diligently, you will still run into problems.”

Anderson says he’s seen claims that can be traced directly back to incorrect data entered into a law firm’s system. “Lawyers should take the time periodically to perform an independent review or an audit of their files to verify the accuracy of the data entered into their system.” He says he’s currently working on a claim in which a staff person in charge of a firm’s data entry diary and tickler system decided it was no longer necessary to enter all of the client files and stopped using that part of the system. “This only highlights the fact that staff turnover, morale, and overall competency and consistency are just as important as the computer system a lawyer is using.”

Managing the Paperwork

Even with technology in law offices, lawyers still have paperwork and files to keep organized. The paperless office is not completely here just yet. One of the goals in managing a practice is to maximize a lawyer’s effectiveness.

All documents should be given a home. A careful and consistent intake procedure is vital to make sure all client files are recorded and tracked properly. Anderson says lawyers too often leave files in a pile on a desk or elsewhere. “Claims have come in for missed deadlines or missed statute of limitations and in the end, it was a matter of misplaced paperwork that could have prevented a mistake.”

He says there are ways to avoid those errors. “It sounds obvious, but sometimes lawyers get busy, especially those with a small office or small staff, and papers and files get misplaced and forgotten. For pleadings that require a response, have a tickler system in place so that you do not miss a deadline. The calendar entries should be made in your computer system immediately upon receiving the document. The better a lawyer is able to take advantage of the technology available, the more likely fewer mistakes will occur.”

Electronic Lawyering

Schumacher says technological advances can make a huge difference for lawyers, and thinking innovatively in terms of how lawyers use the technology can eliminate simple mistakes that were more common many years ago. “Many systems, including ones we use, can help you by throwing dates back at you. System notices or alarms can be set so you get reminders. Years ago, the old tickler system often was only as good as the humans using them. But these systems can be set up so that you will never miss a date or information reminder that has been entered into your network. Paper files and reminders didn’t notify us unless we checked them. Now, we don’t have to rely on that human aspect of calendar notifications.”

Case management and time management software continues to evolve, and lawyers must evolve with it. Some of the older systems still work well, depending on what lawyers need the system to do for them. But many firms have had these systems in place for at least 10 years. Anderson says, “It might be time to upgrade your system, take advantage of the technological advances that have occurred over the past 10 or so years. As everyone knows, technology innovation has been moving at a rapid pace, so lawyers have to keep up.”

Most law offices use much less paper than they did 10 years ago. That’s good, Anderson says, but it also means lawyers must devote time to the electronic demands on their practices. “The impact of email, texting, scanning, and electronic methods of doing business with clients has caused a dramatic change in all the things lawyers need to pay attention to. The efficiencies can be very good, in many ways, but they can also sometimes be overwhelming.”

Email communication sometimes causes mistakes that can lead to malpractice claims. Email communication can often be misinterpreted, and Anderson says WILMIC has the claims to prove it. “Because more than 90 percent of communication is nonverbal, including body language and tone of voice, it’s no surprise that emails are often misunderstood.” Anderson encourages lawyers to have a standard system in place to keep a record of emails.

Some lawyers continue exploring other innovative ways to use technology. A Madison-area lawyer recently used an “instant messenger” program during a trial. “It allowed me to get feedback from a client during testimony of other witnesses. It was like having the client sitting next to me.”

The Future

As fast as technology is moving, law firms are likely to find faster and more efficient ways to use it – for calendaring, billing, case management, and communicating with clients, opposing counsel, court personnel, or other people. With those newfound methods come new dangers for lawyers.

Every time a law firm upgrades to a better system, bugs must be worked out. The integration of systems and more user-friendliness are goals many technology companies strive for but have not completely attained.

Schumacher says that lawyers should be aware of the wave of artificial intelligence that will start sweeping through the practice of law. It has already begun, he says. “Right now, it is still the exception, more down the food chain a bit, but it’s coming. I know of a firm in Israel, for example, that uses artificial intelligence to scan documents to search for specific issues – something lawyers used to do but now is being done by computer systems.”

Artificial intelligence has not transformed the world just yet, but it likely will later this century. According to a recent CBS news report, it might not be long before machines begin thinking for themselves – creatively, independently, and with judgment sometimes better than ours.

As new lawyers, most of whom are technically savvy, enter the legal profession each year, and as courts make increased use of technology, time management and law practice will continue to evolve. Reliance on technology creates its own malpractice risk. We now have e-trust accounting and e-filing, with more technology and practice changes on the way. Lawyers are wise to continue to audit their time management and practice systems to keep up with the changes. As Anderson cautions, “don’t forget to include ‘old-fashioned’ paper file reviews and regular auditing of your network system as part of your overall firm risk management efforts.”