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The most common LAWPRO claims and how to avoid them
Dan Pinnington VP, Claims Prevention & Stakeholder Relations
Lawyers’ Professional Indemnity Company
LSUC Oatley McLeish 2017March 31, 2017
Agenda
• Claims trends• Most common errors• Strategies for avoiding
claims• Questions
Area of law trends
0
100
200
300
400
500
600
700
800
900
1000
Claims Count by Area of Law
Litigation
Real Estate
Corporate
Wills/Estates
Family
$0
$5,000,000
$10,000,000
$15,000,000
$20,000,000
$25,000,000
$30,000,000
Claims Cost by Area of Law
Litigation
Real Estate
Corporate
Wills/Estates
Family
Incurred costs2015-16 are “green”
The most common errors
Plaintiff litigation claims (2006 to 2016)
Defence litigation claims (2006 to 2016)
0
50
100
150
200
250
300
350
400
450
500
Causes of Litigation Claims by Count
Time Management
Communications
Inadequate Investigation
Error of Law
Clerical
Conflict of Interest
Other
The most common errors and how to avoid them
Limitation periods!!
• Limitations Act, 2002• 2 years to commence MVA action
– Subject to discoverability• Accident Benefits
– Licensing Appeal Tribunal deadlines • Shorter notice periods
– Municipal Act– s.33 of Public Transportation and Highway
Improvement Act
CivPro 101
• Must serve within 6 months of issuing
• Notice of Intent gives you 30 days to issue Statement of Claim
• Missing other deadlines• Dealing with multiple parties
when counterclaims, crossclaims etc.
New Rule 48.14
• New automatic dismissal of court files 5 years after commencement– Without notice! – Pre-2012 matters dismissed January 1, 2017– 5 year rolling window going forward
The biggest dangers
• Languishing files– Minimal damages or issues with liability
• Clusters of claims– Overwhelmed juniors– Lawyers with personal issues– Unexpected hiatus (health issues)– Files left behind by departing lawyers
Prevent Rule 48 claims• Use tickler systems!!• Keep files moving!!• Review
– Inactivity reports– Trust fund reports
• Rule 48 Transition Toolkit– File progress plan
• Practicepro.ca/rule48– FAQs
Not controlling client expectations
• Discuss terms of retainer– See LAWPRO precedent
• Be forthright and clear on process, timing, outcome, costs
• Don’t sugar coat damages• Explain cost consequences• Document communications
on these things
Allegations of improvident settlements
• Document advice to client and directions you received– Remember FLA claimants
• Give client breakdown including “take home” amounts and how your fees will be paid
• Get court approval if minors involved
Not digging deep enough
• Understand causation• Name all and proper parties…
– Obtain and read the police report– Corporate searches– Property searches
• Obtain clinical notes and records to work-up damages
• Get experts you need
Not getting all the necessary and correct parties
• Not suing driver of own vehicle• Not naming correct doctor
– Get the clinical notes and records early• Not naming proper insurer due to an
unidentified, uninsured or underinsured claim (OPCF 44R)
• Not naming FLA claimants• Don’t forget other third parties
Accident Benefits
• Application and appeal deadlines!• Claim for the right benefits
– Get documentation to support• Making correct election on care-giver vs.
non-earner benefits
Cyber dangers
• Sending email to wrong person• Bad cheque frauds• Redirection of settlement funds via hacked
email account
• Phishing• Sloppy use of passwords
Carefully evaluate files before taking them on
• Minimal damages• Complex liability issues• Re-evaluate if things change
Conclusion
• Move your files along• Watch limitation periods and deadlines!• Control client expectations• Take time to dig deeper and get details• Document your file
Litigation claims malpractice fact sheet
Questions please!!
www.lawpro.ca
www.lawpro.ca/excess www.practicepro.ca
www.titleplus.ca
