Malpractice and You: Suck Less

Good morning you reprobates! Welcome to the after-school special edition of Lawyers & Liquor where I’m gonna make it clear that just because you have a law license doesn’t mean you’re immune from being a complete dumbass. Yep, that’s right, today we’re gonna dive deep into the realm controlled by USAffinity and shit like that to talk about the definite truth that at some point in your legal career, you’re going to commit malpractice.

Because you will commit malpractice.

Shit, I’ve committed malpractice before.

It’s surprisingly fucking easy to do.

What’s that? You want a fucking story about how goddamn easy it is to commit malpractice? Sure, why the fuck not.

STORY TIME!

As a new attorney, I mistitled a pleading. My jurisdiction has two pleadings called “Motion to Strike” and a “Motion to Open.” They’re two different things, even though you almost always bring them together, and each one has a different standard applied to them. The gist is one is basically like 12(b)(6) for judgments, looking only for some obvious error that invalidates the judgment and is plain on the face of the record, while the other is an examination of like the facts and circumstances and gets a whole hearing and shit. I labeled my pleading as the wrong one, intending to label it as both as is common practice, and then argued the other.

The immediate response was “He’s arguing facts, not plain error on the record, and therefore his motion should be kicked, his client should be deprived of relief, and this fat motherfucker should be forced to walk naked through the courthouse with a clerk ringing a goddamn bell to announce his shame to the world with every step. SHAME UPON YOU!” There was a flurry of activity in the office as my asshole tightened up upon reading the service motion and realized that this could be a really fucking big deal. I could literally have cost my client the whole deal with one mistake. Luckily, apparently this shit happens a lot and there was case law directly on point that said “No, lawyers fuck up, we get that shit, so we’re not going to look at just the title of the pleading but rather the content to determine what it is.”

Still, fixing that mistake required a hearing and argument on me sticking the wrong word in the caption of a pleading. That added thousands of dollars to the case, thousands of dollars we couldn’t bill through. That shit hurts the soul…but what hurt the soul more was when my partner came in, closed the door, and very simply said:

“I should fire your ass right now. The only reason I’m not firing you is I looked at that motion too and didn’t catch it. But you need to understand…this is malpractice. You have to inform the client.”

Luckily, the client understood and let me fix the problem, and in the end it all turned out in his favor. But that line right there has stuck with me: “This is malpractice. I should fire your ass right now.”

THERE ARE LESSONS HERE

The thing about that fucking story up there? It’s not unique. Every lawyer out there has some story about the time they almost or definitely fucking did commit malpractice through some otherwise benign error, not being careful enough, or simply not keeping their calendar in order. Most of the time, we’re able to fix the issue though, and we don’t bill that shit through to the client, and so in the end we’re not gonna get dinged on it. But yeah, we’ve all fucked up professionally at some point, because people in every professions fuck up at some point in time. When we can fix it, though, it’s not a huge deal. We learn from the fuck up and put controls in place to avoid that shit happening again.

I, for instance, now spend way too much time proofing the titles of my pleadings in addition to the actual content. Because save for that ass-saving line of cases, I would have been out of a job, out of a client, and facing an insurance claim.

But let’s not talk about the fact that you’re absolutely going to commit malpractice at some point in your career, let’s talk about how to fucking minimize the impact of that malpractice by making sure it’s some small fucking thing and not a case-ending screw up that leaves you giving handjobs for student loan payments like some Infinilaw graduate or something.

KEEP A GODDAMN CALENDAR.

Seriously, the single biggest cause of malpractice in our profession, accounting for like 13.3% of all malpractice claims (when you combine the two different deadline related categories together),  is people missing goddamn deadlines for filings and shit. This shouldn’t be an issue. We live in an era where I’m surprised your toilet isn’t connected to wifi with a calendar app pre-installed so you can review your schedule while flushing. You have absolutely no goddamn reason to not be calendaring this shit in your phone or on your computer in an application that that can be accessed remotely from another device.

More than that, though, you assholes need to be reviewing the SoL and response timeframes the very goddamn second you get something in and sticking it on your calendar. And you need to be making sure you have the right fucking date to work from in doing it in the first place. Because at some point, your ass is going to calendar a response for 30 days from the day you received something that isn’t initial service rather than 30 days from the day it was mailed or some shit, and that’s going to come back to haunt you horribly. Or you’re going to miscount something and stick it a day or two after the due date on the calendar. Because you’re an idiot and not good with numbers, and both of those added into your amazingly intelligent decision to go to law school.

Know your fucking deadlines and put them on a calendar. While a judge may forgive you for a day late response because you’re a moron, your clients may not. You get paid the big fucking bucks, do that shit right, because it’s a really fucking basic part of law to know when you have to have shit done and filed by.

STOP THINKING YOU’RE PERFECT.

Look, you’re going to fucking suck at something. Mommy and Daddy sure as fuck didn’t do you assholes any favors by telling you how smart you were growing up and fawning all over every accomplishment without making it clear that sometimes you’re just a fucking dumbass. And this hurts lawyers, because holy fuck can we be an arrogant bunch of pricks. Try to tell a lawyer they don’t know something, I guaran-fucking-tee they’ll work the fact they’re a lawyer into the answer somehow like it’s proof of our overarching intelligence and inability to ever be incorrect.

I’m just as guilty of this shit as the rest of you.

But I don’t let my swelling ego make me think I know everything about the law. Unlike 11.3% of attorneys that have malpractice claims reported against them, because that shit is the second highest cause of malpractice claims. That’s right, for the time period in that report from the ABA, approximately 11.3% of the claims were because lawyers either didn’t know the fucking law, or they misapplied the fucking law, and that shit lost someone a case. Isn’t that just some goddamn hubris? I mean, it really tells you that young motherfuckers need to have the ability to access the law readily and know how to make sure they’re doing shit right. It also shows that sometimes we take cases that we really shouldn’t be fucking taking because they are so fucking far out of our knowledge zones we have no business even glancing askew at them on a Saturday night.

It isn’t just young guys, though.

Old guys have this really bad habit of forgetting the law isn’t static and it changes. What was good case law back when computers took up entire rooms and a legal secretary was someone who transcribed your godforsaken chicken scratch from a legal pad to a typewriter may not be good law in these magical days where you have to explain cassette tapes to your kids. But a lot of old guys, for some reason, don’t keep abreast of the changes in the law and refuse to attend CLE’s that give them the same information. And that’s where you get problems like “Earl argued that I actually own my wife as a piece of property” and shit. Because a failure to stay current is a real quick way to notifying your malpractice carrier that you’re a dinosaur.

The key to avoiding this one is simple: don’t be a prick with an inflated ego and do some basic research, even if you think you know the area of law backwards and forwards. Failure to do so is the difference between a happy client and defending a lawsuit.

Add into this shit like “Failure to follow instructions” (4.4% of malpractice claims) and “Failure to get client consent” (5.4%) and you can really quickly tell that the fucking hubris problem in the practice of law is a real green-eyed monster that ends up fucking attorneys over.

You may know better than your clients pretty fucking often, but you ain’t ever gonna be on the ball 100% of the time, and your role as a lawyer doesn’t make you a tinpot dictator in the Isle of Assholes.

GET YOUR ASS ORGANIZED

The last two I want to talk about are near and dear to my heart, because they’re definitely ones that I run the risk of when the work load gets too high: procrastination (5.9%) and losing a fucking file (0.5%).

Holy shit, you guys have no clue how goddamn heartpounding it is to think you lost an important piece of a file unless it’s ever happened to you, but it’s so goddamn easy to do. You’re working hot and heavy on something as the mail comes in, so you stick it in a pile on the edge of the desk figuring you’ll go through it before the end of the day. Then the end of the day comes and you’re immediately going “Fuck this shit. I’m going home. I’ll look through it tomorrow.” Then tomorrow comes and there’s another fire to put out, and the mail comes and…you get the fucking drift.  Before too long you end up with a pile of papers larger than most small children teetering on the side of your desk, and you have no clue what’s in it.

The key to this? Get organized and get modern. Everything that comes into the office should be scanned in immediately to the electronic file you’re definitely fucking keeping. Your staff, if you have a staff, should know to do that shit. Then you immediately review that shit and put it in the correct file, without having to search for 90 fucking minutes for the correct file. Then you move forward with your life secure in the goddamn knowledge your office is organized.

It’s the grown up version of “put your toys away before getting another one out.” Seriously. Go back to fucking kindergarten.

As for procrastination…guys, I got nothing on that. I’m constantly a day behind where I need to be on most things.

Just try to fucking stick with it and stay late to get caught up every now and again, and make sure shit’s getting done by the date you calendar it for.

ANYTHING ELSE?

Yeah, guys, there’s a lot to fucking say about committing malpractice. But this shit has already gone on too long. I’m just pointing out a couple common traps that so many fucking lawyers fall into with this stuff, and I’m doing it because I’m constantly swinging on a vine over them myself. I don’t have solutions, not this time at least.

But I can tell you what to do when you’re pretty sure you committed malpractice.

Next time, though.

Cause for now, I, appropriately enough, have shit to do.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.