1

AttPro AllyFall 2013 ◊ Issue 14

Page 2: What to Do When You’ve Missed A Deadline

Page 3: Help for the Holidays

Page 4: Frequent errors in discovery

Page 6: Risks Associated with Unbundling Legal Services

2 3AttPro Ally Fall 2013 www.attorneyprotective.com

1. Deal with it immediately. Clear some time right now to analyze and address the situation.

2. Involve another attorney immediately to help you analyze your options. This can be someone in your office or outside counsel

3. Analyze the deadline. Was it set:a. by court order?b. by civil rule?c. by statute?

4. Analyze the error - how/why was the deadline missed?

5. Analyze possible solutions and develop a plan to try to correct the error.

6. Bring the client up to speed on the problem and the proposed solution. Memorialize the communication in writing. If the initial contact occurs on the telephone, prepare a follow-up letter or memo to the file.

7. Put your malpractice carrier on notice of the potential problem in writing. This is why you have coverage. Don’t create a potential issue by failing to timely communicate the error.

Depending on how the missed deadline was established and the state where you practice, there are ways to attempt to repair a missed deadline. For example, if it’s a statute of limitations, does your state toll the statute while the defendant is outside the state? If it is a court-ordered deadline, can you work with opposing counsel to stipulate around the deadline? Is the theory of excusable neglect applicable? Has there been a failure to receive notice of the deadline to which you or your legal assistant can attest? The very worst thing you can do when you become aware of a missed deadline is to ignore it or put off addressing it until tomorrow. Your chances of remedying the error decrease with each passing day. Address it immediately and enlist the help of a fresh set of eyes.

It is also crucial to promptly, truthfully, and completely explain the situation to your client. Everyone makes mistakes, but trying to hide those mistakes only compounds the situation.

George Jonson is a civil trial lawyer, licensed in Ohio and Kentucky. He has been in practice since 1983 and represents lawyers and judges in civil and ethical matters.

By George Jonson

As we all know, the holiday season often arrives not just with celebrations, but with stress. And during the holiday season, it is far too easy to ignore this additional stress by indulging in alcohol to an excess.

What is less easy to recognize is when the use of alcohol or other substances has become a person’s habitual method of self-medication because use of such substances appears to smooth out stressful situations quite effectively.

Only over time, as use of substances to overcome stress accelerates, does it become clear that the mood swings caused by alcohol and other substance(s) come with an ever-increasing “cost” that further perpetuates stress. Unfortunately, this process is hard to see and often not recognized until well after it has begun to affect a person’s life, job and family.

The purpose of this piece is to point out the sign posts that can help you and other professionals recognize substance abuse as early as possible so that help can be recommended or sought.

Substance abuse usually progresses through three stages – from normal “use,” to “abuse” and finally to full “dependence” (addiction). Each category can be defined by what it “costs” the person using the substance.

Costs can be legal, financial, relational, physical, or emotional. As “costs” increase, the individual gradually moves from “use” all the way up to “dependence” over time.

The “costs” associated with dependence are significant, including multiple levels of legal, financial, relational, physical and emotional problems. Some signs that the “cost” of substance abuse might be elevating include a decline in work product, arguments with a significant other, more money spent on substances than planned, or an arrest associated with the use of a substance. Any one of these increased costs could indicate a transition from substance “use” to substance “abuse.”

Such “costs” may get the attention of the individual engaging in substance abuse and result in changes in the substance use. If this does not occur then the chance increases that abuse will become dependence.

If you or a lawyer in your firm is exhibiting any of the behavior discussed above, professional assistance may be the only method of recovery. Fortunately, many state bar associations offer assistance programs for lawyers that are anonymous.

If you are struggling with substance abuse or you know someone who is, you can locate a number of resources by contacting your state bar association or by viewing the Directory of Lawyer Assistance Programs on the national American Bar Association website at www.abanet.org.

AttPro Ally Fall 2013 www.attorneyprotective.com

Source: Beck, Sales, & Benjamin (1996). Lawyer in Distress: Alcohol-related problems and other psychological concerns among a sample of practicing lawyers. Journal of Law and Health. 10, 1-60. Rates of Alcohol Problems and Depression.

General Population8%Females w/ alcohol problems 71%20%Males w/ alcohol problems

Female depression67%

14% 16%9%Male depression 21%

Attorneys

Help for the holidays Article provided by the Indiana JLAP

4 5

especially critical ones such as expert designations and discovery cutoffs, on the calendars of at least two people in your office.

• Addressing all discovery requests promptly after service, particularly those that require active client cooperation and participation for response.

• Speaking to the client early on about persons with knowledge of relevant facts, expert witness candidates and important documentary and other evidence. Communicating to the client that urgency is necessary and disclosing evidence far in advance of trial in order to assure that the judge will admit it is important. Explaining to the client that witnesses and evidence identified at the eleventh hour before trial may be excluded.

• Determining early in the case which potential witnesses need to be deposed and promptly initiating the scheduling process. If a witness critical to the case is in poor health, has a very busy travel schedule, or has characteristics or habits that create doubt about his or her willingness and/or ability to appear as a live witness at trial, consider videotaping his or her deposition to preserve the testimony.

• Before conducting depositions (particularly those of adverse experts), obtain and review all important, relevant and discoverable documents by way of requests for production and depositions on written questions, if necessary.

• Having a thorough familiarity with the documents directly involved in the case, but also obtaining and reviewing evidence pertinent to the expert’s qualifications and

testifying history, together with relevant publications and anything that may be available for impeachment.

• Defining and explaining “spoliation of evidence” to your client early in the case, including taking the time to emphasize the probable consequences resulting from spoliation. It may be prudent to take possession of original documents and other important evidence and keep them in your office, properly identified, labeled and secured against inadvertent disposal or destruction.

• Carefully guarding important evidence in your care. Some years ago, a Houston lawyer left a soft drink can that was the subject of a pending products liability case in which he represented the defendant on his desk when he left his office for the night. When he returned the next morning, it was gone. Efforts to retrieve it from the office building dumpster failed. The court told counsel that he intended to give the jury a spoliation instruction which would have made it virtually impossible for the defendant to win. Promptly thereafter, the case settled. And yes, the lawyer had to call his professional liability insurer.

The key to risk management is often having established and followed, consistent procedures, so it may be helpful to create a checklist that covers discovery procedures for your firm as a means to prevent discovery errors.

Don Karotkin is Principal at Don Karotkin law firm in Houston, Texas.

According to the ABA Profile of Legal Malpractice Claims: 2008-2011, lawyers’ failures to adequately investigate legal matters and to use correctly the discovery process during litigation cause an average of 9% of legal malpractice claims. This article provides an overview of how these types of errors manifest in the daily practice of law, and offers tips on how to avoid them.

Generally speaking, lawyers representing clients in litigation have a legal and ethical duty to use the discovery tools the law provides in a careful, prudent manner for the client’s benefit. However, most jurisdictions differentiate between liability for criminal defense lawyers and civil lawyers. In fact, the criminal defense bar is essentially immune from liability for errors made in the discovery process because of the common-law rule requiring the plaintiff to prove, as an essential element of his or her case, that he or she has been exonerated, through direct appeal, post-conviction relief, or otherwise, of the offense of which he or she was convicted. Without such exoneration, public policy dictates that the criminal conduct of the convict be regarded as the sole proximate cause of his or her conviction, thus prohibiting the convict from profiting from

illegal conduct and shifting the

consequences of the crime to a third party. See, e.g., Peeler v. Hughes & Luce, 909

S.W.2d 494 (Tex. 1995).

In contrast, where the action

in the underlying case was civil, no

analog to the rule of Peeler exists. In such

cases, the legal malpractice plaintiff has only the traditional burden of proving: 1) a legal duty of the lawyer to the client based on the existence of a lawyer-client relationship at the material time; 2) breach by the lawyer of the duty to exercise reasonable care; and 3) the breach proximately caused plaintiff’s injuries and damages. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989).

The following list of discovery-related errors is based on this writer’s personal experience in defending legal malpractice cases as well as legal research into the relatively small number of reported appellate cases involving alleged legal malpractice in which one of the plaintiff’s allegations was lawyer negligence during the discovery process in the underlying civil case which adversely affected the outcome.

Frequent errors made in written discovery include: • Failing to serve appropriate

interrogatories, requests for production, requests for disclosure and requests for admissions.

• Failing to object properly to an adverse party’s failure to make proper discovery responses.

• Failing to serve properly responses to written discovery requests, leading to the imposition of sanctions, including the exclusion of evidence or witnesses.

• Failing to assert properly applicable claims of privilege.

• Failing to properly file supplemental discovery responses, resulting in exclusion of evidence or witnesses.

• Failing to respond timely to a request for admissions,

resulting in deemed admissions.

• Failing to designate properly persons with knowledge of relevant facts, resulting in exclusion of witnesses.

• Failing to designate properly expert witnesses, resulting in exclusion of experts.

• Failing to designate expert witnesses who are properly qualified to testify on the issues on which expert testimony is needed.

Frequent errors made in depositions include:• Failing to depose important

adverse witnesses.

• Failing to depose favorable witnesses who may become unavailable to testify at trial.

• Failing to use available impeachment evidence.

• Failing to use available evidence of bias.

• Failing to use available publications to impeach an adverse expert.

• Failing to obtain important, relevant documents through depositions on written questions.

Frequent errors made in other discovery matters include:• Failing to preserve and protect

evidence, resulting in a claim of spoliation.

• Failing to move for the physical and/or mental examination of a party, where indicated.

Measures you can take to avoid mistakes include:

• Declining representation in matters you are not qualified by training and experience to handle.

• Calendaring all deadlines,

AttPro Ally Fall 2013 www.attorneyprotective.com

Frequent Errors in Discovery

AttPro Ally Fall 2013 www.attorneyprotective.com

Tip Jar

• Join us for a free webinar, Social Media Ethics for Lawyers on January 30, 2014. Register at attorneyprotective.com/webinar. We will be applying for CLE accreditation for the webinar in multiple states.

• Take time to read one of the many articles currently online about Lester v. Allied Concrete Company to learn how social-media-related spoliation resulted in a five-year suspension for one Virginia attorney.

• A Guide to Legal Malpractice Insurance is now available on Attorney Protective’s website at attorneyprotective.com/law-firm-risk-management.

By Don Karotkin, JD

6 7AttPro Ally Fall 2013 www.attorneyprotective.comAttPro Ally Fall 2013 www.attorneyprotective.com

Like many opportunities, offering unbundled legal services is a business decision that has some dangers associated with it. This article provides the key practice tips to make unbundled service delivery a success for your clients and for your practice.

Most lawyers have been educated regarding deciding which legal services a client needs. The full-service package usually starts with a client paying a retainer and cost limitations are outweighed by lawyers (and clients) expecting the lawyer to do what is necessary to competently represent the client.

Many clients who cannot afford or do not wish to buy the traditional full-service package may be able to afford limited fees for limited services. This reality is resulting in the do-it-yourself movement and growth of mediation which is in turn producing a consumer population that wants more control over the cost of professional services. Many people are even prepared to do some work themselves to save money. At the same time, many people who want to take advantage of unbundling may not be capable of handling the tasks on their own. That makes the intake process an important stage in averting risk. A client’s desire for unbundled legal services does not mean that they are qualified to take on all of the lawyering tasks involved in unbundling service for the case. You will need to evaluate their ability prior to agreeing to such an arrangement. Ask some tough question such as:

• Are there language or educational deficiencies?

• Are there anger management concerns?

• Are medical/mental challenges present?

Another consideration is the complexity of the case. The opposing lawyer may be so skilled or aggressive that a client trying to negotiate or handle court hearings on his own may be headed for disaster.

It is just as important to ask yourself, are you the right lawyer to handle the parts of this case that the client delegates to you? Do you have experience and knowledge in the area of law and skills to properly supervise the client? If you do refuse the case, be sure to do so in writing to document that you are not their lawyer and they should seek other counsel, especially with looming deadlines or Statutes of Limitation. The key to meeting ethical requirements for unbundling legal services is to document client informed consent. Before taking on a limited-scope engagement, make sure that your client knows the benefits and risks of the unbundled arrangement. Before you take on a full service client, reverse the information and compare the traditional model with the advantages and downsides of unbundling the legal services. Use the variables of cost savings, control, ability to handle frustration, client skills and time available.

By Forest Mosten

Risks AssociAted with

UnbUndling legAl seRvices

A key ethical requirement for the validity of any limited scope engagement is a written engagement letter. There are many template agreements available through the ABA or your state bar. Your agreement should be clear, and provide a detailed check-list of those tasks that the client will be undertaking and those tasks for which you are assuming responsibility. Your fee structure should also be outlined in detail. For example, if you are requiring a replenishible retainer, you should specify when additional fees are required. If you are working for a flat fee, be explicit when your responsibilities are fulfilled. It also is crucial that you and your client know how and when to be in contact with each other. Set expectations regarding communication at the beginning of the attorney-client relationship. After reviewing the agreement, it is a prudent practice to allow your client time to reflect upon the challenges of the unbundled option prior to signing your engagement agreement, so encourage them to take the agreement with them for at least 24 hours prior to signing. Another issue that is cause for concern when unbundling legal services is that states have been divided in their requirements of notice. Some states protect the confidentiality of shadow lawyering so that courts, lawyers, and parties must deal directly with a self-represented party regardless of how much coaching a lawyer does from the sidelines. Other states require lawyers who ghostwrite pleadings to disclose their unbundled role. Some states have court forms available for lawyers to expressly state the issues and lawyering tasks (negotiation, drafting,

which court proceedings) for which they have been retained leaving all other issues and tasks to be handled by the client. Carefully review your own state’s requirements of notice and follow them carefully. One of the practice building benefits of offering unbundled services is that your clients may decide that they want full-service assistance. In such a situation, you will need a new attorney-client engagement with a more traditional fee arrangement outlined.

Unbundling legal services is yet another way for lawyers to address the needs of their clients and expand their client base. It is also sometimes a source of malpractice claims. Doing your homework and proactively establishing procedures to prevent issues can go a long way to avoiding malpractice claims.

Forrest S. Mosten is internationally recognized as the “Father of Unbundling” for his pioneering work in Limited Scope and Discrete Task Services to provide affordable and understandable legal services to the underserved members of our society. He is in solo private practice as a Family Lawyer and Mediator in Los Angeles in which unbundling and other non-litigation activities are the foundation of his professional work. He is the author of four books and numerous articles about unbundling and other issues of legal access and peacemaking, serves as a keynote speaker for legal conferences worldwide and is Adjunct Professor of Law at the UCLA School of Law.

AttPro Ally

8

5814 Reed RoadFort Wayne, IN 46835-3568

Visit us at www.attorneyprotective.com or call (877) 728-8776

®

Lacy Cripe, EditorPolicies are written by either National Liability & Fire Insurance Company or National Fire & Marine and administered by Attorney Protective. All coverage is subject to specific policy terms and conditions. 2013 Attorney ProtectiveSM. ® All Rights Reserved. Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to lacy.cripe@attorneyprotective.com.

Learn more about unbundled legal services on page 6.