CLE Part II: Competent Representation Includes Systematically Protecting Clients

This blog continues the summary of my CLE on preparation, investigation, and discovery in New York personal injury litigation. Part II focuses on competent representation. If you have questions about the CLE, this section or would like to view the slides, please contact our office.

Unfortunate Statistics

From 2004 to 2007, the leading causes of legal malpractice claims were:

1. Failure to know and/or apply the law;
2. Planning error;
3. Inadvertent discovery and/or investigation work;
4. Failure to file documents (i.e. missing a deadline);
5. Failing to calendar (i.e. not keeping track of deadlines); and,
6. Failing to know the deadline

See "The Most Common Legal Malpractice Claims by Type of Alleged Error" (available via ABA at: http://bit.ly/1DpeBd7).You'll note that these are not outrageously complex tasks. They are not arcane or highly specialized. Clients expect lawyers to "know the law." They expect lawyers to "file documents." They expect lawyers use a calendar and know the deadlines. Why are the rates of malpractice so high in these seemingly basic areas? And what can be done to prevent the most common types of harm?

Competent Representation: It's the law.

1. Competent lawyers demonstrate legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation to protect clients and prevent harm.
2. Competent lawyers must never handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle without associating with a competent lawyer.
3. Lawyers must never intentionally fail to seek the client's objectives through reasonably available means allowed by the law and rules.
4. Lawyers must never prejudice or damage the client during the representation except as permitted or required under the rules and law. See NY ST RPC Rule 1.1.

More broadly, competence turns on several factors. Those factors are addressed in the comments section of the rule and case law. Some are listed here:

Competent representation lowers the risk of legal malpractice, disciplinary action, losing a case, disappointing clients, and conflicts. The more competent the representation by simple preparation and investigation, the less risk of harm to the client.

Unconscious Competence: Is Experience Enough?

Look closely at the pyramid below. You'll see that at the top of the pyramid is "Unconscious Competence." The picture suggests that the most competent practitioner, who is least likely to break rules, is experienced. It would suggest that person is so experienced they have "unconscious" competence. Experience builds skill. No doubt, experience can be extremely helpful. But it is not everything.

Some evidence suggests that experienced lawyers are more likely to commit malpractice.

See: Kritzer, Herbert M., and Neil Vidmar. "When the Lawyer Screws Up: A Portrait of Legal Malpractice Claims and Their Resolution." SSRN Electronic Journal, June 29, 2015. doi:10.2139/ssrn.2627735.Systematic competence will protect the firm against unconscious inadvertence. For instance, failing to calendar a date might not be a question of whether the attorney knows the date or knows it SHOULD be put on the calendar. Forgetting to calendar a date turns on just whether the attorney or thinks to calendar that date while in a busy practice. How do you remember ever time? Checklists.

Checklists For Systematic Competence

"Under conditions of complexity, not only are checklists a help, they are required for success. There must always be room for judgment, but judgment aided--and even enhanced--by procedure. Gawande, A. (2010). The checklist manifesto: how to get things right. New York: Metropolitan Books.

One of the hardest problems we face is to manage a large amount of information, jump from issue to issue, and problem to problem in a busy practice. The attorney may have many complex matters, deadlines pressing, calls to make, cases to prepare for, and then the phone rings. The caller would like to discuss a potential new case. Are you ready to discuss the issues? Are you ready to avoid missing issues? Memory does not always serve. Checklists prevent problems in many in surgery and airline crashes. There is even a checklist for checklists. Why not law?

Checklists at crucial "pause points" in the day or during the course of a case can prevent minor missteps from turning into major injuries. Checklists never forget steps. Checklists ensure the baseline for competent representation. That is why they can do wonders to systematically prevent errors and protect everyone.

Conclusion

As always, we are complimented when you call to discuss representation.