When it comes to avoiding legal malpractice suits, it’s not what you say, but how you say it that counts.

In fact, insurance industry statistics for the United States and Canada show that errors in applying the law serve as the basis for malpractice suits in just over 10 percent of cases. The actual percentage is 11.51, according to the most recent Profile of Legal Malpractice Claims published by the American Bar Association’s Legal in fall 2008.

So what do lawyers do that accounts for the other 90 percent of malpractice suits? There are several explanations, but the bottom line is they fail to communicate.

The biggest group of claims comes from clients who believe their lawyers did not communicate with them enough or at all. And, who decides whether there has been enough communication? In one word it’s the client.

Developing better communication skills is a major goal of the Fall 2009 Legal Malpractice Conference in Chicago. The conference – Identifying Risk in a Changing Law Firm Landscape – looks at a variety of approaches and techniques lawyers can use to help reduce their legal liability exposure. It takes place September 23 – 25 at the Swissotel Chicago.

“The conference committee has put together a fantastic program that focuses on effective client communication, as well as related topics such as reducing risk through fee agreements, entering into limited scope representation engagements, and risk spotting in the new law firm landscape. Risk management experts from all over the country will present at these sessions,” said Heather L. Rosing, conference chair. “In this troubled economy, our goal is to provide tools that help our colleagues spot the issues and address them.”

Price, Quality Speed – Pick Any Two

Poor communication also covers claims made due to rushed circumstances – by either the lawyer, the client or both. There is an old saying found in copy shops: Price, quality, speed – pick any two. According to Dan Pinnington, director of the risk management initiative PracticePRO for Lawyers Professional Indemnity Company, the organization that provides malpractice insurance to members of the Law Society of Upper Canada, when lawyers and clients attempt to move quickly, both sides make assumptions.

“When both parties are in a hurry, neither is listening well. It is easier for a rushed lawyer to handle the immediate concern without doing any further probing, or for a client to push for an immediate answer without divulging all the facts. Human nature is that we all want to please and lawyers are no exception,” said Pinnington.

“In hindsight, the fast answer may not be right and if the lawyer has failed to keep the lines of communication with the client open, he or she may be surprised with a malpractice complaint.”

He lists failure to investigate thoroughly, to identify the underlying legal problem or to ask for verification as resulting from a lack of communication. “A lawyer in a hurry might forget to ask about children from previous marriages or relationships in drawing up a will. Or a lawyer might fail to ask what kind of business a client expects to operate in a commercial structure only to find that zoning codes prohibit exactly the type of business his client wants.”

High Cost of Not Communicating

Given the high cost of not communicating, what can lawyers do to improve? Mark Goulston, M.D., has a one-word answer: listening.

Goulston, a clinical psychiatrist, who has trained FBI hostage negotiators, will deliver the first plenary at the fall malpractice conference. He said that doctors who are perceived as caring have fewer malpractice claims than doctors who are perceived as aloof. “The same applies to lawyers. When there is an honest mistake, the professional who has shown concern by listening is given the benefit of the doubt.”

He says, “When you listen to the real concerns – what they are most afraid of, clients can relax. They feel gratified. The challenge for professionals is that they fear if they give clients an opening – a way to express their feelings, the clients will waste their time with venting. But the opposite is true.”

In his work as a psychiatrist, Goulston who trained at the University of California at Los Angeles following medical school at Boston University, has made many house calls on dying patients with the goal of bringing different factions of a family together. “I would say, ‘We’re running out of time here. Who has some to say or who wants to be the first to apologize?’ Once one person started, they would all chime in. Some of what they were talking about was 30 years or more old. I would leave those meetings feeling so sad that they waited so long.”

Goulston compares a business organization to a family. “The boss is like a parent and the employees are like siblings or children.”

With groups – whether families, businesses or law firms, he asks the individuals in the group think back to a time when each of them needed help, when they found someone who believed in them even though they didn’t believe in themselves at the time. “I tell them that if they can recall that moment, they can recall how being listened to changed everything for the better.

“In working with law firms, I find that members are able to become partners who root for each other and support each other by having each person share the story of when someone helped them through a difficult time. That session not only transforms that group, but it helps them realize what they could accomplish if they could be to their clients what the person who listened was to them.”

Goulston believes that lawyers who listen have fewer malpractice claims, less burnout and actually remember why they went into law in the first place.

His presentation at the fall malpractice conference is scheduled for 8:45 a.m. on Thursday, September 24. Each conference registrant will receive a copy of Goulston’s recent book, Just Listen: Discover the Secret to Getting Through to Absolutely Anyone.

More information on the conference is available here, or contact Jane Nosbisch at 312-988-5754

Sidebar:

Top 12 Ways of Avoiding Malpractice Claims

1. Start on the right foot with a written retainer agreement that spells out what you will do in what timeframe and when you will send reports and statements to the client.
2. Get your retainer upfront. You should ask for enough to cover the initial work needed for the case.
3. Manage client expectations; a good rule of thumb is to under-promise and over-deliver.
4. Document everything (within reason). Use letters, phone logs, margin notes and emails to show your work,
5. Meet or beat deadlines; don’t wait until the day a filing is due to begin work.
6. Avoid doing things that annoy clients, such as fail to return phone calls or sending bills without documentation.
7. If you don’t know an area of the law, don’t dabble in it; practice what you know.
8. Don’t wait until the file is closed before you ask how you did.
9. Remember what goes around comes around so be civil to everyone – opposing counsel, opposing clients, judges, office staff.
10. Send progress reports.
11. Don’t sue for fees; that action invites a countersuit.
12. Document, document document.

Dan Pinnington
PracticePRO Director
Lawyers Professional Indemnity Company
Toronto, Ontario, Canada