• May 7, 2014
Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

Minnesota Lawyers Mutual, the chosen professional malpractice insurance company for many Minnesota lawyers (including me), sponsors continuing legal education programs from time to time. Think of it as preventative health care or a wellness visit?

In a recent webcast, widely known malpractice defense lawyers Phil Cole and Richard Thomas mentioned that a hotbed of legal malpractice claims are blown statutes of limitation in personal injury cases.

Oops (complaint is linked). Why are personal injury lawyers particularly susceptible? What can they do to mitigate this risk?

Maybe attorney malpractice defendants can get some reprieve (or at least pay less to resolve the claim) with an arbitration clause? The contingent fee agreement at issue in the professional malpractice case linked above begins in ALL BOLD CAPS: THIS CONTRACT IS SUBJECT TO ARBITRATION. One cannot get more plain and direct than that.

The plaintiff’s side personal injury practice appears to be a volume based legal practice where plaintiffs’ lawyers take on a large volume of cases counting on some small percentage of them to yield a premium (low investment, large recovery), recognizing that many will have little or no profit margin. This practice is also normally handled by relatively small law firms. The risk of attention deficit in this practice, therefore, is particularly high.

With quite a few human errors, the precautions are so obvious that it seems idiotic to give them (“do not text while driving” “be sure to docket statutes of limitation” etc. etc.). Our problem is not that we are unaware of the risks or unaware of safeguards to avoid the risks. Our problem is that we often function at our limits — our limits of time, our limits of speed, our limits of organization, our limits of attention, our limits of self-control — and therefore inevitably, from time to time, beyond them.

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