1. WHAT KEEPS YOU UP AT NIGHT? Getting Peace of Mind In Your Law Practice Thomas J. Watson

2.  Will you ever have a malpractice claim?

3.  Do you think you have ever committed malpractice?

4. Elements of malpractice  A.Lawyer-client relationship  B.Negligence  C.Proximate cause  D.Actual collectible damages

5.  These are claims-made policies  What exactly does that mean?

6. What constitutes a claim?  A demand for money or services that relates to remedying the alleged wrong

7. When to report a claim  1.As early as possible – sometimes a matter can be “repaired” BEFORE it turns into a claim.  2.Failure to report a claim as required by the policy during the policy period may result in forfeiture of coverage.

8. What should be reported  Claim  Claim incident

9. Statute of Limitations  A.Six years  B.Starts running: 1)When the negligence occurs, or 2)When the client knows or reasonably should discover that they have been harmed.

10. Who’s making mistakes?  Newer lawyers (first five years of practice) – 10% of WILMIC claims  Lawyers in practice 15-20 years – 30% of WILMIC claims

11. Stay away from “dabbling”  Dabbling is extremely risky. Why? Approximately 40% of all claims involve areas of practice in which lawyers practice LESS than 10% of the time. Less than 1% of all claims involve areas of practice in which lawyers practice 90-100% of the time.

12. Riskiest areas of practice  1.Plaintiffs’ Personal Injury  2.Real Estate  3.Business Organization  4.Estate, Trust & Probate  5.Bankruptcy & Collections  6.Family Law

13. Most common mistakes  1.Failure to know the law or properly apply it – 15% of all claims  2.Planning Errors in Choice of Procedure – 13% of all claims  3.Inadequate Discovery and Investigation – 12% of all claims

14.  4.Client Communication – 12% of all claims a)Failing to inform the client b)Failing to obtain a client’s consent c)Failing to follow a client’s instructions

15.  5.Administrative procedures and calendaring – 24% of all claims a)Failure to react in a timely manner to your calendar b)Failure to know or ascertain the correct deadline c)Failure to calendar properly d)Procrastination

16. How do you avoid these mistakes?  Failure to know the law or properly apply it  Planning errors in choice of procedure  Inadequate discovery and investigation  Client communication  Administrative procedures and calendaring

17. What Is Good Client Service? 1.Expertise in the matter 2.Clear, written fee agreements and engagement letters 3.Regular status reports to the client 4.Copies of correspondence related to the case 5.Prompt reply to inquiries 6.Detailed and accurate billing

18. Before suing for fees, ask yourself seven questions… 1.Was the client pleased with the outcome? 2.Are you critical of your own performance? 3.Has an uninvolved attorney assessed your representation? 4.Is the amount at stake worth it? 5.Is there an alternative to a lawsuit? 6.How will your malpractice carrier see this? 7.Would a judgment even be collectable?

19. Billing Policies Lawyer who did the work should always read the bill Important on-going communication tool with your client Be detailed and consistent

20. Effectively Utilizing Your Staff 1.Good staff people have case management skills *Opening and closing files *Preparing fee agreements, forms, letters *Drafting correspondence, pleadings, answers to interrogatories, etc.

21. 2.Staff should handle some administrative procedures *Consider your strengths and weaknesses *Shouldn’t staff be able to do conflict checks, file management, etc.? *Good training, avoid turnover

22. 3.Client communication – good staff people can help Client selection – identifying difficult clients Staff contact with clients – seeing potential problems before you do Familiarity with your cases Understanding confidentiality rules

23. Dealing with pro se litigants Non-clients sometimes bring claims too More and more unrepresented parties Divorce cases in Dane County – 70% unrepresented Cautions when dealing with pro se parties

24. Limited Scope Representation (Unbundled Legal Services) Limited scope representation is permitted in Wisconsin by the Rules of Professional Conduct SCR 20:1.2(c) – “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

25. reasonable and informed Reasonable? Assisting a party with forms or providing brief consultation. Unreasonable? Trying to provide limited guidance on a matter involving complicated marital property and/or tax issues.

26. What is proper informed consent? Supreme Court rule – “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct.”

27. Best advice – define the representation specifically, in writing, and get the client’s confirmation in writing as well.

28. - Good way to document who is going to do what -Give a copy to the client -Tailor them to your specific practice -Fill them out while the client is present -Make sure you and your client each have a signed copy Use checklists

32. Limited scope representation should be in writing It MUST be in writing if it is at least $1,000 in legal services. That’s true of any type of representation, limited or not.

33. Potential risk when taking limited scope cases You may have a duty to advise a client of readily apparent and relevant information, even if it falls outside the scope of a limited representation, and to advise the client to seek independent advice, if appropriate.

34. Top Ten List of LSR Best Practices 1.Use good judgment 2.Document your file 3.Everything should be in writing 4.Educate your clients 5.Be careful not to “dabble”

35. 6.Be wary of unrealistic expectations 7.Make sure representation is reasonable 8.Draft good fee agreements 9.Consider using checklists 10.Memorialize any changes in the scope of your representation

36. Disaster Recovery (Business Continuation Planning) 93% of businesses that are without access to their data for more than 10 days file bankruptcy within one year of the disaster 40% of businesses suffering a business interruption fail within five years of that interruption

37. Five reasons businesses get caught off guard when a business interruption hits  Denying a disaster could happen to you  Failure to do any disaster planning  Allowing yourself to be unaware of risks  Ignoring the warning signs  Relying on weak, untested plans

38. What could go wrong?  Serious illness, injury to, or death of a partner or associate  Natural disaster (flood, tornado, fire)  Technology failure (computer system crash, electrical storm damage, security breaches)

39. Results of down time  Loss of income and clients  Loss of future income or clients  Lost productivity, idle employee cost  Unanticipated business expense  Missed deadlines and appointments

40. What are your professional responsiblities?  Communicating with your clients  Diligent representation  Confidentiality None of these cease in the event of a disaster.

41. So what should you do?  Prepare a business continuation plan Establish procedures for evacuation, contacting employees and clients, re- opening your office, having alternative work sites, if necessary, and recovering files, calendars, records, etc. Protect your electronic data (backup procedures, etc.)

42. Protect your paper files, scanning active and/or critical files, store off-site, if possible. Review your property and other insurance coverage. Review, update and test your plan regularly.