• May 9, 2013

The great thing about collecting and analyzing data is when the data disrupts conventional thinking and MLM’s April 2013 newsletter provides one of those interesting surprises.

Per capita, who triggers the most professional malpractice claims, the lawyer n00b (or “novice” for those unfamiliar with this 21st-century slang) or more experienced lawyers?  Naturally, one would think that inexperienced lawyers screw up more so they have to be getting sued more, no?  No.  Consider these points, most of which are discussed in the excellent piece by Todd C. Scott, MLM VP of Risk Management:

  • New lawyers out on their own know they know nothing and perhaps are even honest enough to tell their clients as much who, therefore, would be less likely to sue given this sobering up-front disclaimer;
  • New lawyers work on smaller matters generally, so they might be able to self-insure (“here’s your money back and I’m sorry” or other similar quick fixes) and not report angry clients more than more senior lawyers);
  • New lawyers very often work under more senior lawyers so that, if the new lawyer screws up, it is, actually, the senior supervising lawyer who can and should be sued;
  • More experienced lawyers might have a larger share of complicated/higher damage case loads, therefore making malpractice claims against them more likely both due to the greater risk of screw-ups and the larger upside for a claim against them for professional malpractice;
  • More experienced lawyers may cut corners and take more risks than hyper-vigilant n00bs (particularly those who are judged and compensated by how many long hours they bill, an incentive system that does not reward corner-cutting, of course);
  • And, finally, as Mr. Scott points out, legal malpractice claims have “long tails.”  That is, with a six year statute of limitation, as one continues to work, one accumulates files, some of which might have “ticking time bombs” of potential legal claims so a young lawyer’s errors might only show up on that lawyer’s radar when she is no longer a young lawyer.

(A final note about the data, though:  MLM does not provide any data about the data. We do not have raw numbers. We do not have a time span. We do not have the data source.  We do not have a standard deviation or other metrics of statistical reliability.  It is therefore fun to talk about but not robust enough to put any huge stock in.)

Nevertheless, if you are a young lawyer and you want more guidance and peace of mind, read the Todd Scott’s Malpractice Pitfall Tips for New Lawyers in the newsletter.

And I would suggest one more thing, perhaps one of the most difficult pieces of advice:  when you screw up, tell on yourself at the earliest opportunity.  Report what you have done to your colleagues, to trusted advisors, to your insurer, and to your client.  Why? First, under Minnesota Rules of Professional Conduct, I would suggest you have that professional obligation to your clients.  Second, the sooner you step up, the sooner you can openly and vigorous do everything in your power to remedy any bad consequences from your error.  (Also, you might think you really blew it but you may actually be wrong.  For example, blowing past a statute of limitation on an extremely weak case is not a good thing.  But it might not be a particularly actionable malpractice claim.)  Third, as there is famous data suggesting that doctors that are sued for medical malpractice tend to be those who have “poor bedside manner” —  that is, they treat their patients badly interpersonally, if not medically — you may find that an open and honest problem-solving approach will avoid rather than precipitate a malpractice claim.   If you own up to your errors, if you deal squarely with your clients, I would suggest they would be less likely to harbor the deep hurt and resentment that can otherwise build into a deep reservoir of fuel for bitter and protracted finger-pointing.

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