Insurance is all about risk, and if a law firm wants to keep its malpractice premiums under control, it will have to reduce its chances of winding up on the wrong side of a malpractice suit.
The good news is that the most frequent cause of malpractice claims - deadline errors - can be easily managed with a good calendaring system, according to attorney Mark Bassingthwaighte, risk management coordinator of the Attorney Liability Protection Society, a Montana company that offers malpractice insurance to attorneys in 23 states.
Even the more complicated risk factors, such as attorney burnout, conflicts of interest and substance abuse can be spotted more easily by firms that have a quality calendaring system in place, he said.
In an interview with Lawyers Weekly USA, Bassingthwaighte discusses what firms can do to decrease their risk of being sued for malpractice and, in doing so, make themselves more attractive to insurance companies.
The result, he said, just might be lower premiums.
What are some of the factors that determine the size of a firm's malpractice premiums?
For some firms, malpractice insurance is a heavy burden; for others, it isn't. The costs of insurance are based largely on risk, and some firms are perceived to be much riskier than others. Many of the larger firms have taken significant steps to reduce their liabilities. However, most of the small and mid-sized firms and solo practitioners are still dragging their feet. For example, many insurance carriers offer premium discounts to firms that have computerized firm-wide calendaring systems in place, but many firms are still maintaining pencil-and-paper calendars, with all the risk of error that involves.
Why are calendaring systems so important?
According to the ABA Standing Committee on Lawyers' Professional Liability, missed critical deadlines, often a result of poor calendaring practices, are a leading cause of malpractice litigation. In addition, conflict-of-interest claims are a serious concern due to their high potential for resulting in a large verdict or settlement.
Attorney impairment is the other significant concern, because we recognize that often some type of impairment, even common things like stress or burnout, are a contributing factor behind the misstep that led to the malpractice. Technology, along with effective training and management, can greatly reduce all three of these risks.
Again, some firms are at much greater risk than others. Firms handling large volumes of litigation are, by their nature, high risk. For them, a key goal should be to not just eliminate risks but, in particular, to eliminate the kinds of risks that can lead to serious damages. The severity of lawsuits is more critical than their number.
What are some of the better calendaring programs available?
Most of the firms that are using firm-wide computerized calendaring aren't using the most efficient technology. The majority of the firms I've visited are using Microsoft Outlook, a generic approach, and many of them are still missing deadlines, big time!
Firms using rules-based calendaring systems designed specifically for lawyers are actually in the minority.
What are rules-based systems and why are they better than Microsoft Outlook?
With a rules-based calendaring system, you [can] keep track of all the local rules for you and alerting you to any changes or updates.
For instance, if I put a court order in and there are three or four dates - discovery deadlines, etc. - all the related dates that flow from them are already programmed into the calendar. The program knows how to calculate if the date falls on a Sunday and what the right date will be if there's a holiday. If the court changes [the order] three months later, and the other deadlines change too, the rules-based system knows all the dates that are already attached. It keeps track, so the rules-based system deletes all of them and changes them to the correct dates.
Compare this with Outlook as an example. In Outlook - or even in a paper calendar - you physically go and you enter all the data. It's 100 percent manually driven. If errors creep into the calendar, there is no firm-wide method of catching them.
My guess is that over the next few years, insurance carriers will start pushing law firms, especially firms handling a lot of litigation, to move to a firm-wide or practice area rules-based calendaring process. This approach to calendaring can be done with the help of sophisticated software or even through the Internet, with systems that offer 24/7 access to calendars (some products are referred to as "Web Portals") or with online legal date calculation services.
What are some of the pros and cons a firm should consider when deciding whether to use calendar software or a web-based portal?
In terms of insurance companies, we like readily accessible calendars. I want to avoid rushing out of my office on a Friday afternoon, failing to look at my calendar, and Sunday night my daughter saying, 'Mom can't take me to a dentist appointment in the morning. Her schedule is too full. Can you go?' And I'm thinking, 'Yeah, I don't think there's anything on my calendar,' and off we go. And, of course, I miss a hearing and there's a judgment entered against a client. So I like easy, 24/7 access.
You also have ability with these web systems, if there's a fire, for instance, there's this off-site backup that's immediately accessible. Because even with back-up tapes - if you have a catastrophic loss - to restore your systems and get this tape back and recover, it's more than a day or so. But with your web system it's there. It's always there. I think that's what really differentiates the two.
Even with rules-based calendars, don't you still have the problem of lawyers failing to meet deadlines?
Even the best calendar can be ineffective if an attorney is impaired. I'm not talking just about alcoholism. Lawyers can be affected by numerous physical and psychological problems, including burnout, depression, stress and exhaustion.
Most firms have very few quality control processes to identify lawyers who are losing control of their workload. Some firms ask lawyers to review their files once a month, but file review is time consuming, and many lawyers simply don't do it.
Where impairment is a potential problem, I encourage firms to use their calendaring system as a tool to monitor workloads and assignments and to identify potential impairments. If a lawyer is not meeting mandated file review dates, that raises a red warning flag.
Also, with a computerized system, firms can insist that lawyers file papers and meet other deadlines a specific number of days before they're actually due. Again, this kind of approach spots developing problems before they can snowball into a malpractice lawsuit.
It's pure gold if you can get a firm to use its case-management system to raise accountability to a higher level. It provides assurance that the work the firm brings in will actually be completed in a timely and responsible manner.
If a firm implements a rules-based calendaring system, are there risks the firm still must consider?
The goal of a calendaring system is to make sure that the firm's attorneys are aware of deadlines at all times. So, you want a system that can be accessed by lawyers who are traveling or in court.
You also want to make sure the firm backs up these files. All it takes is a fire or disaster to create havoc. If the computerized calendaring system is destroyed, it can take months of work, and many sleepless nights, to restore it. That should never happen. With today's technology, it's relatively easy and inexpensive for a law firm to back up all of its critical data in an off-site location, preferably well away from the main office. Then, the firm can ride through a disaster and still be back in business in a matter of hours.
Are there other benefits to using a computerized calendaring system?
If a firm coordinates its calendaring and case-management systems, it creates accountability. If a lawyer or legal assistant makes an error, you can pinpoint responsibility for the error and provide whatever training is needed to make sure it doesn't happen again.
A firm-wide computerized system can also help spot areas where the firm's processes and procedures are breaking down. Any law firm that sees improving the quality of its work as a competitive tool should move to automated rules-based calendaring. It will do a lot more than help fend off malpractice suits; it will help eliminate many of the errors and oversights that undercut the quality of the firm's casework.
This Q&A was submitted by Legal Voice, Inc., with additional reporting by Jaclyn Jaeger.
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Popular Calendar Software
Mark Bassingthwaighte is a fan of Deadlines on Demand, which is produced by CompuLaw. But there are several other popular legal-specific products that include sophisticated calendar functions. Among the most popular are:
Deadlines on Demand
Website: www.deadlines.com
Phone: 888-363-5522
Location: Los Angeles
Parent Company: CompuLaw, LLC
PC Law
Website: www.pclaw.com
Phone: 800-387-9785
Location: Buffalo, N.Y.
Parent Company: Lexis/Nexis
TimeMatters
Website: www.timematters.com
Phone: 800-328-2898
Location: Cary, N.C.
Parent Company: Lexis/Nexis
AmicusAttorney
Website: www.amicusattorney.com
Phone: 800-472-2289
Location: Toronto, Ontario
Parent Company: Gavel & Gown Software, Inc.
The Plaintiff Law Office Software
Website: www.theplaintiff.com
Phone: 877-202-0235
Location: Huntsville, Ala.
Parent Company: Data Development, Ltd.
Abacus Law
Website: www.abacuslaw.com
Phone: 800-726-3339
Location: San Diego
Parent Company: Abacus Data Systems, Inc.
Client Profiles
Website: www.clientprofiles.com
Phone: 866-720-5005
Location: Atlanta
Parent Company: Client Profiles, Inc.
Case Manager Pro
Website: www.casemanagerpro.com
Phone: 877-884-9097
Location: Dallas
Parent Company: Solutions in Software, Inc.
Needles Case Management Software
Website: www.needleslaw.com
Phone: 410-363-1976
Location: Owings Mills, Md.
Parent Company: Chesapeake Interlink, Ltd.
Prevail Case Management System
Website: www.prevail.net
Phone: 407-228-4400
Location: Orlando, Fla.
Parent Company: Practice Technology, Inc.
Legal Files
Website: www.legalfiles.com
Phone: 800-500-0537
Location: Springfield, Ill.
Parent Company: Legal Files Software, Inc.
PracticeMaster
Website: www.practicemaster.com
Phone: 402-423-1440
Location: Lincoln, Neb.
Parent Company: Software Technology, Inc.
Reprinted with permission from Lawyers Weekly USA. You can get a free trial subscription to Lawyers Weekly USA by visiting www.lawyersweeklyusa.com or calling 800-451-9998.
© 2006 Lawyers Weekly Inc., All Rights Reserved.
October 24, 2005
