WHO IS WATCHING YOUR BACK? A CHECKLIST ON "DEFENSIVE LITIGATION"
The previous post looked at the “fish file” checklist prepared by groups in a recent session I conducted in at one of Kerry Underwood’s courses. A second checklist was also prepared by the groups and this related to “defensive litigation“. What positive steps could litigators take to positively avoid problems occurring? We already have a number of checklists on specific issues. Delegates were asked what, more general, issues needed to be addressed.
THE LIST: DEFENSIVE LITIGATION
- Appoint a “risk manager” that is someone in the firm who is alive to, and can increase awareness of, issues relating to negligence.
- Have a “case manager” that is someone who is particularly aware of diary entries and gives alters.
- Have a system of peer review (which I was assured did not mean review by members of the House of Lords).
- Have clear written standards and internal policies.
- If there is a key date have a system where this is put in the diary as soon as possible, do not wait for a court order to arrive.
- Have a system of being able to prove postage of all documents and, if possible, recording receipt. Particularly in relation to documents sent to court.
OTHER LISTS THAT MAY HELP: IDEAS FROM “ACROSS THE POND”
“Attorney at Work” has a useful article on 10 Ways to Avoid a Malpractice Claim written by Dan Pinnington.
1. Get it in writing (that is the terms of the retainer should be clearly identified).
2. Get the money up front
3.Manage client expectations
4. Document, document, document.
5.Meet or beat deadlines.
6. Don’t annoy clients.
7. Ask how you are doing.
8. Send interim and reporting letters.
9. Don’t sue for fees.
10. “Listen to your gut”.
You may not agree with all of these. However they give food for thought.
OTHER MATERIAL TO LOOK AT
Attorney at Work has a number of relevant articles.
There is a whole wealth of material on avoiding “malpractice” for personal injury litigators in the United States available here some of the points made are clearly relevant in the context of England and Wales (and beyond).
VERY USEFUL MATERIAL FROM KENTUCKY
Lawyers in Kentucky have a mutual insurance society. This has a useful series of checklists and guides in all areas of practice. The whole site is well worth a visit (with the caveat that this is a different jurisdiction. Particularly interesting are:
- Competence in the law is mandatory and the best risk management
- Accused of malpractice: don’t just do something sit there
- A checklist for risk managing settlements