All of the gift giving this time of year got me thinking about the "gifts" that a plaintiff's malpractice attorney hopes for when making a wish list. Here's part one of my list of the top 10 "gifts" you should avoid giving to the plaintiffs' malpractice bar:
- A Conflict of Interest. Conflicts create claims where otherwise claims cannot be found, and conflicts turn up the heat on otherwise mundane causes of action. Don't let your malpractice plaintiff season its claim with hot sauce (Frank's Red Hot is my favorite), avoid claims of disloyalty by keeping a keen eye on conflicts of interest at all times.
- The Huge Receivable. Your own interest in getting paid can create a conflict if you allow your hourly clients to accumulate huge unpaid receivables. Often, those clients will blame adverse results on your perceived lack of effort, or later assert malpractice counterclaims when you try to collect. Manage your receivables closely, and consider obtaining a waiver of this potential conflict before proceeding if the A/R gets too high.
- No Engagement Letter. In Engagement Letter Essentials Part I and Part II, we described the engagement letter as perhaps the most valuable document in a defense attorney's aresnal. Plaintiff's counsel would like nothing more than for you not to have one. Please, please, please document the scope of your engagement, the identity of your client, and the basis for your fee in writing.
- E-Mail Debates. Diamonds are forever (just ask James Bond or DeBeers), but so are e-mails. Don't engage in lengthy debates over e-mail - not internally, not with clients, and especially not about sensitive subjects (such as the huge receivable discussed in #2). Those discussions are best had in person or over the phone.
- Undocumented Advice. Advice, on the other hand, should be documented in writing and e-mail is a great way. Jurors think that lawyers document everything, so when you say you gave certain advice that your former client denies or can't remember, those e-mails come in handy. It is especially important to create a record of strategic decisions, such as foregoing certain discovery or omitting a possible cause of action. When you come to a fork in the road, document your client's decision and the pros and cons that you articulated before picking a direction.
When it comes to malpractice liability, it's okay to be a Scrooge. Stay tuned for #6-10 in Part Two.