Think Tank: Law Firm Calendaring is Tried and True Tech for Reducing Malpractice Risk
By Alex Manners, Director, CompuLaw
Calendaring and docketing are fraught with risk. Consider these timeless examples all drawn from publicly disclosed news sources:
- The long train. With just about 45 minutes to spare before the deadline, a firm sent its courier to the courthouse with a filing. It should have been enough time to make the deadline, however, the courier got stuck in traffic and then had to wait for “a long train to pass” at a railroad crossing. The firm missed the deadline by one minute and it cost the client $1 million in late filing costs.
- Miscalculated deadline. A law firm partner miscalculated the days and subsequently missed the deadline to file an appeal. It was an honest mistake. His clients still filed a $100 million malpractice lawsuit.
- Triple error coverup. Sometimes one wrong turn leads to another, as this malpractice example shows. First, a firm filed a suit in the wrong venue. Next, the corrected suit wasn’t filed until after the statute of limitations had expired. Finally, those involved attempted to cover up the mistakes. A court ordered a combined compensatory and punitive award of $35 million in the malpractice suit that followed.
These are just a few examples of the asymmetric risk associated calendaring and docketing errors. By asymmetric, we mean how a seemingly minor mistake can lead to a major problem.
The Latest Malpractice Data
The volume of malpractice claims and associated costs have grown, according to the Profile of Legal Malpractice Claims: 2012-2015 published by the ABA. This report aggregated data from malpractice insurance carriers and is the most recent available.
Some of the related commentary stemming from the report says that the volume of claims isn’t terribly noteworthy, but the growth in cost underscores the disproportional risk. For example, according to the ABA Journal:
“Claims that ended with no judgment or settlement paid were the biggest proportion of claims, as they have been historically. But they dropped from 72.41 percent in 2011 to 62.26 percent in 2015. Meanwhile, payments at the high end increased: Payments of $500,000 to $1 million jumped from 0.25 percent to 1.23 percent, and payments of $1 million or more increased from 0.08 percent to 0.6 percent.”
While the ABA report includes all types of claims, still a significant number of all legal malpractice claims can be attributed to calendar-related errors.
Unfortunately, it’s a long-standing problem too, since meeting deadlines is at the top of recommended best practices for avoiding malpractice.
The Three Phases of Risk in a Missed Deadline
Where does this risk come from? How can something so simple – like calculating how many days left before a deadline – go so wrong?
As it turns out, in the two decades that we’ve studied this specific problem, it’s usually related to a lack of unified process. Often, we see firms either not having or not following standardized procedures for calendaring workflow.
The areas of risk for a calendar or docket-related error can be separated into three distinct phases: input risk, process risk and output risk:
- Input risk. This is the initial information that creates the need for a calendar event. If there isn’t a standardized workflow in place to ensure all data that leads to a calendar event is captured and directed to the appropriate contact in a firm, the chances of a mistake increase.
- Process risk. Research is often required to determined which events need to be entered on a calendar. It can be driven by a range of rules from federal, state or local jurisdictions. These rules can change or become outdated, which firms need to look for to avoid making a mistake in calculation. Courts may observe different holidays or require differing methods for counting periods of time.
- Output risk. The final category of risk in calendaring is related to the dissemination of calendar information. Typically, this means a failure to notify relevant attorneys about new or changing deadlines. Sometimes this happens because a firm does not have a centralized process if an attorney leaves a firm or is out of the office. Sometimes the correct information is being provided to the correct audience, but it is not in a medium that is used by the person responsible for acting on the data.
What’s important to take away is that each phase has unique risks stemming from the workflow, rules and calculation, and communication breakdowns. While few risks are entirely preventable, there are some tried and true practices for risk mitigation.
Tried and True Ways to Reduce the Risk of Missing a Filing
The most important part of risk mitigation is taking it seriously and understanding the implications. Risk is the intersection of the probability of an occurrence, with the severity of the impact.
Most lawyers intuitively understand the concept since many often spend a good deal of their working lives managing risk for clients. In the flurry that is a busy attorney’s day, it’s easy to often forget to manage it for themselves.
Conventional best practices include the following:
1) Develop a risk management program. This begins with a policy that articulates how a law firm will manage risk through people, process and technology.
2) Form a risk task force. This multi-disciplinary group of law firm professionals will implement the risk management program. It identifies sources and mitigation tactics including the development, improvement or evaluation of process, technologies, and services.
3) Establish standardized calendaring processes. Document how the firm will manage calendaring including how information flows through the firm and how it will perform audits to ensure compliance.
4) Implement centralized calendaring. Develop a centralized calendar view, with all the critical dates and deadlines. There are plenty of time-tested technology options for deploying a centralized law firm calendar that scrupulously maintain jurisdictional rules and automate the calculation of deadlines.
5) Enable calendar integration. Maximize exposure and adoption by providing users with the means to obtain the information in a medium that works the way they like to work. In many firms, this means choosing tools that integrate with a favorite calendar application such as Microsoft Outlook.
6) Backup and business continuity. Ensure this information is part of the firm’s plan for business continuity and disaster recovery.
7) Commission a dedicated administrator. Designate a manager to oversee the firm-wide calendaring system providing one consistent point of contact. If the manager is to bear the responsibility, he or she also needs to be empowered with the authority. In larger firms, this is often delegated to competent business of law staff in the back office.
The Next Generation of Legal Calendaring
While such suggestions are great first steps, these are also merely the fundamentals in a competitive landscape where efficiency is paramount. More and more, modern law firms are seeking out tools and technologies that facilitate closer collaboration between the front and back office.
The next generation of calendaring technology tools is being reimagined to support this trend, particularly for larger firms. This is because market pressures are requiring the front office to be more involved in what has traditionally been reserved as a back-office function.
The legal assistant who supports three different attorneys is a good example. These attorneys often have different needs for calendaring reports, in different formats, and on different days. In the past, the assistant emailed the back office and requested the report – and by the time the report was produced, something had changed.
The idea is to not only address this but also to create efficiency. The legal assistant (or paralegal, or attorney) needs to have access to their calendar view and be able to customize the format to fit their needs without the risk of circumventing the established law firm processes.
More importantly, the view will also need to contain a link to additional information an attorney might need. For example, if a filing deadline changed, the reason why or how is a just a click away from where previously, a user would have been forced to research the rules or procedures from a given jurisdiction.
The life of a lawyer and a law firm is driven by a calendar. It’s often the first thing checked in the morning and the last thing every night. With a little process and technology, they reduce the chances of waking up to a missed deadline or malpractice claim.
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