You can still find yourself being sued for malpractice, even if you have done everything correctly. A well-documented file can help to explain what work was done or to justify an account and can be a lifesaver when it comes to defending a malpractice claim. A good paper trail can help show what work was done on a file long after your direct and specific memories of the file have faded. Here are some resolutions you can make to help you keep a better-documented file:
- I will document the important conversations and communications on my files: It is just not practical to document everything on every matter, but you should document as much as you can in some contemporaneous manner (i.e. notes in a file, a formal confirmation letter or quick email to the client, detailed time dockets, a memo to file, etc.)
- I will make specific efforts to document and confirm major discussions and decisions on my matters: For the sake of reconstructing the work that was done on a matter, you want to make sure you record advice or instructions that involved significant issues or outcomes, and major client instructions or decisions (e.g., strategy discussions, settlement discussions, changes to previous decisions or advice), and send confirmation of key discussions and decisions to your client.
- I will be especially careful to document situations where my client wanted me to follow a course of action that I did not recommend or that could have possible negative outcomes: Every action you take and decision you make will be judged with harsh 20/20 hindsight. Clients have a tendency to not remember the advice they received as to negative outcomes, longer times for resolution or higher costs. Protect yourself in these situations by confirming these discussions with your client.
- I will also be extra careful to document my files with difficult or emotional clients: Take extra care to document your file if you are dealing with difficult or emotional clients as they may not hear or understand your advice (no matter how hard you try to communicate it) and are more likely to complain about it later.
- I will get signed directions for major decisions on a matter: On major decisions, a signed direction is your best option for confirming that a client did indeed give instructions to follow a particular course of action.
- I will use written offers to settle: Offers to settle have to address many details, and there are many opportunities for confusion or mistakes. A written offer to settle can help eliminate misunderstandings and miscommunications and make sure all details of a settlement are documented and confirmed.
- I will not document nasty or embarrassing things: In moments of frustration you might find yourself mad at your opposing counsel, the opposing party, the judge handling your matter or even your client. These thoughts should not be documented in your file as they could come back to haunt you in the event they are disclosed to your client in a malpractice proceeding.
- I will capture all manners of communication in my file: Some clients will use email as their primary communications channel. In this situation documenting email conversations is important to tracking what occurred on a matter. However, there is no need to print and store every email in the paper file, as long as you have the emails stored in an organized and regularly backed-up electronic form so you can retrieve them if necessary.
- I will keep draft versions of documents in the file: Draft or interim versions of a document can assist in showing how a file progressed, in particular if there are marginal notes reflecting discussions with clients.
- I will keep a copy of the final version in the file: For obvious reasons, having a copy of the final signed document in the file is essential. But, consider whether you really want or need to have the final signed original document in your file. Sending the original to the client means you can avoid the onerous and potentially costly obligations of taking care of the original as long as it is in your possession, including in your closed file storage.
- I will send interim and final reporting letters on my files: At significant milestones and especially at the end of the matter, reporting letters can confirm what work was done and the successes obtained for the client, and next or further steps to be undertaken on a matter, by you or the client. A final reporting letter should confirm that the retainer is terminated. (And in the final reporting letter don’t forget to ask a happy client for a referral to friends, family and business colleagues – some clients think you may be too busy to take on new matters, so politely disabuse them of that notion!)
These resolutions were taken from "New Year's resolutions for a better practice and a new you" which can be found in the December edition of LAWPRO Magazine.