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2021/07/01 Articles

Starting Your Career? Adopt Healthy Risk Management Habits Now

July 1, 2021

No lawyer is safe from malpractice proceedings! That said, as a young lawyer, perhaps you feel you are more vulnerable? Think again! Senior lawyers are as likely as their junior colleagues to be the subject of a malpractice claim or lawsuit.

Moreover, claims or lawsuits against young lawyers do not necessarily involve a lack of legal knowledge, on the contrary! Most of the time, complaints against lawyers, whether junior or senior, stem from shortcomings in the management of their practice. As it happens, the beginning of your career is a good time to develop skills and habits that will allow for a more serene practice. Here are our suggestions:

Adopt Time Management Skills

First, have an agenda system with the following three (3) date categories: the periodic review of files; prescription, forfeiture and other time limits; and meetings and court appearances.

Make sure that important dates are recorded in two (2) separate registers, kept by two (2) different people (e.g. the lawyer and the assistant).

Similarly, your agenda system should remind you of important dates sufficiently in advance to allow you to react to unforeseen events.

Check and recheck the applicable prescriptive period. In this regard, the Insurance Fund’s prevention team has published a memory aid entitled Prescriptions extinctives et autres délais, which is a table of prescriptive, forfeiture and prior notice time limits available on the website in the Guides and Tools section.

Finally, fight procrastination! Is the file complex? Is the client difficult? Whatever the reason, postponing the work to be done carries the risk of missing a deadline or leading to client dissatisfaction. Don’t hesitate to read our article entitled Overcoming Procrastination: Some Tips to help you get rid of this bad habit.

Manage Your Workload

As a corollary, our second suggestion is to learn to manage your workload. This means planning the tasks to be done on a weekly basis. One planning strategy is to organize your tasks using General Dwight David Eisenhower’s matrix, which classifies tasks according to their urgency and importance. For more information about using this matrix, see the article entitled Pre-Crastination: Have You Heard of It?.

In addition, learn to say “no”. At the beginning of your career, it’s not always easy to refuse a mandate. However, when a lawyer is overworked, the quality of the work often suffers. Thus, while reassuring your colleagues of your flexibility and availability, explain to them that good management of your workload is beneficial for maintaining high quality standards. 

Develop Strong Communication Habits

Client relations are among the most frequent causes of claims, regardless of the number of years of practice.

Thus, it is important to properly manage the client’s expectations. Be careful when discussing the chances of success in a file. Transparency is a must! The client must be informed of all aspects of the file, both good and bad. Also discuss the time frame and fees for completing the mandate. Thereafter, regularly inform the client of developments in the file.

Moreover, we cannot overemphasize the importance of setting out, in writing, your advice and recommendations, the strategic decisions made in the file as well as the advice rejected by the client. The same applies to settlement offers. Indeed, in the absence of a written document, if you are sued, the merits of the case will rest on the credibility of the parties. It’s not because you are a lawyer that the court will necessarily accept your version if you do not have any written material to back up your claims.

Finally, keep in mind that your client’s file is important to them and may evoke strong emotions. Be available and practice active listening.

Select Your Clientele Appropriately 

One of the challenges at the beginning of your career is to build a clientele. It can therefore be tempting to accept any new client who shows up at your door. That said, before accepting a new client, you must ask yourself two (2) questions:

  • Do you have the skills to carry out the mandate? All too often, errors occur because the lawyer has not followed certain formalities specific to a particular area of law. Thus, avoid accepting a mandate in an area with which you are not very familiar.
  • Should you accept the mandate? Some cases are interesting from a legal point of view, but the client’s personality can make the case management more complex. There are certain signals that can be used to identify clients with difficult personalities. On this subject, please see the article entitled Relations entre avocat et client, which will also help you determine whether to represent a client with a difficult personality.

Open and Close Your Files Correctly

Once you have accepted the mandate, be sure to have your client sign an engagement letter. The engagement letter should identify the client, the nature and scope of the mandate and what is specifically excluded. In fact, this document can clear up a number of misunderstandings about what was to be done and by whom.

Similarly, at the end of a mandate, send a short letter to your client specifying what has been achieved, referring to the documents you are returning and mentioning the additional steps, if any, that may be required in order to safeguard the client’s rights. Of course, be sure to keep a copy of the file since it is your best ally if you are sued for malpractice.

To conclude on this subject, you can consult the checklist Main Elements To Note During a Mandate to help you draft engagement letters and end-of-mandate letters. 

Carry Out a Proper Investigation in Each File

Take the time to cover all relevant aspects of the file by asking the client the right questions. Make sure you understand the client’s objectives. This involves being able to “read between the lines” and rephrase what the client is saying.

Adequate investigation also means retaining an expert if necessary or identifying the right expert required to meet the burden of proof.

In all files, the essential tool for a good investigation is your theory of the case. Spend as much time as you need on the theory of the case, as it will help you avoid many surprises and much waste of time that may be required during the mandate to rectify any errors or omissions. 

Ask Questions and Seek Supervision

Are you unsure about the strategy to adopt in a case or the applicable law? Don’t hesitate to ask questions to a more experienced lawyer. This can help you break through obstacles and ensure that you provide quality service to your clients.

In this vein, it is a good idea to have a mentor who can guide you on both legal issues and the management of your practice. Having the advice of an experienced lawyer can accelerate the acquisition of knowledge and skills that might otherwise take years to acquire. So why deprive yourself of that advice?

In closing, being sued for malpractice comes with a number of disadvantages: damage to your reputation, stress and the considerable time spent assisting the lawyer assigned to defend you. By adopting these preventive measures, you will limit the risk of being sued.

 

References:

April A. Otterberg, “Ethical traps for young lawyers”, in Los Angeles Daily Journal, January 2, 2015, online:

https://jenner.com/system/assets/publications/13813/original/Otterberg_DJ_1_2_15.pdf?1420460396.

Ian Hu, “Young Lawyers: Build Good Practice Habits and Avoid Malpractice Claims”, in Law Practice Today, April 14, 2017, online:

https://www.lawpracticetoday.org/article/young-lawyers-build-good-practice-habits-and-avoid-malpractice-claims/.

Tim Lemieux, “Common practice pitfalls: How to avoid them” in LawPRO Magazine Special Student Edition, 2017, number 5, online:

https://www.practicepro.ca/wp-content/uploads/2017/06/2017-01-common-practice-pitfalls-2017-student-version.pdf.