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RISK MANAGEMENT

The forgotten cause of malpractice claims is poor communication

One often ignored cause of malpractice claims is nothing more than poor client communication.

People judge their attorneys by the quality of the relationship, explains Nora Bergman, a Tampa attorney and advisor with the Atticus law firm practice management company in Mt. Dora, FL.

“That’s true of all clients,” she says, “whether bluecollar worker or sophisticated banker.” They can’t judge the quality of the legal work, so they base their opinion on whether they believe the attorney cares about them.

Here Bergman cites the communication mistakes and necessities that are most apt to cause or prevent malpractice claims.

Communication about the work

The expectations

At the first meeting, ask what the client wants the firm to accomplish. Don’t assume.

Misunderstandings are rife there, Bergman says. “It’s not uncommon for a litigation attorney to jump in with a scorched earth policy and prepare for a courtroom war when all the client wants is to settle the matter quietly.” The client may even be willing to leave money on the table just to get the matter over with and go on with life.

Outcome promises

Don’t make promises about the outcome of a matter.

To tell a client “this is a slam dunk” or “this is a no brainer” is to invite a malpractice claim, because legal matters take all sorts of unexpected turns.

Opposing counsel

Tell the client what to expect in the attorney’s relationship with the opposing counsel.

If there’s going to be an amicable relationship with the other side, say so and also explain the need for it, for example, “In court, you’ll see that I’m friendly and professional with the other side. Don’t read anything into that. I always treat the opposing counsel professionally, because it puts me in a better position to negotiate for you.”

Not knowing that, an unschooled client may well interpret a friendly professional relationship as an indication the attorney has sold out on the matter.

Bad news

And then there’s the can’t-refuse malpractice invitation of not calling a client immediately when there’s a bad result.

The bad news isn’t going to go away, says Bergman, and delaying the call is a wrath generator. It says the attorney doesn’t care that the outcome is poor.

Clients want candor. They are far more receptive to an honest “I’m sorry it didn’t turn out the way we had hoped” than to being ignored by their attorneys.

A frank and sympathetic call at a bad time “actually enhances the relationship.”

Communication about the calls

The communication trivia

Also at the first meeting, cover the trivia of communication so the client knows what to expect.

Call-backs are important to every client. Tell them what to expect, such as, “We return all calls by the end of the next business day” or “we respond to e-mails within 24 hours.” And put it in the engagement letter.

Also let the client know who’s going to be on the other end of the line. Introduce the staff and associates who will be working on the matter, for example,

“This is Pat Smith, my paralegal. There are times when you will not be able to reach me, and Pat can answer many of your questions.”

Taking messages

If the client calls and the attorney is out, give an estimated time for the call-back: “Attorney A is out right now, but she will be returning her calls between 4:00 p.m. and 5:00 pm. What is the best number for her use at that time?”

If the attorney is not available then, the assistant should call and reschedule.

Attorney in the loop

Whenever a staffer calls a client, the conversation should begin with “This is Staffer A. Attorney B has asked me to call and let you know such-and-such.”

That’s good psychology, Bergman says. Hearing “Attorney A asked me to call you” is reassuring. It shows that the attorney is in the communication loop and knows what is going on “and is making sure the ball isn’t dropped.”

When to expect a call

A standing appointment

A matter may be progressing swimmingly, but if the client doesn’t know about the good progress, the firm looks bad.

Set a standing appointment for a status update phone call. The frequency depends on the matter, but every two weeks is usually appropriate.

Tell the client the calls are also an opportunity to ask questions. And because no client wants to get nickled and dimed to death with one minute here and two minutes there, say “we are not going to charge you for the calls.”

That may be nontraditional, but in today’s nontraditional environment, it needs rethinking, Bergman says.

Make the calls brief – 10 minutes at most.

And let the paralegal make them. Besides saving the attorney’s time, that emphasizes the paralegal’s role in the matter.

The paralegal’s role also keeps the cost down for the client, because there’s less time spent calling the attorney with questions.

A batch of questions

Another good communication tactic, she says, is to tell clients to “batch their questions” and cover them all in the status calls.

Again, that’s good psychology. Besides stopping the phone tag, it assures clients that every inquiry will be taken care of. It also forces clients to collect their thoughts before talking with the attorney. And it eliminates the stress of wondering what’s going on with the matter.

Communication about the bills

The when and the what

Explain how and when the client will be billed.

And bill regularly. Once a month is good, Bergman says. If the firm is racking up a lot of hours, twice a month is better.

No client wants to get hit with a bill of three or four months of hours.

Along with that, follow the rule of giving clear and detailed work descriptions on the invoices.

A vague entry such as “review document” makes anybody suspicious that the bill is padded. Tell what document was reviewed and why and how that document fits into the big picture.


Related reading:

Reduce your risk of malpractice claims with a centralized calendar system


Just common sense can ward off disciplinary and malpractice actions


Manage client anger to avoid malpractice claims and bad publicity


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