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 two of my list of the top 10 "gifts" you should avoid giving to the plaintiffs' malpractice bar:
- Absolutes, Guarantees and Unrealistic Expectations. Wouldn't a plaintiff's attorney love to get her hands on a quote from you expressing your beliefs as to the strength of her case. You bet. There are plenty of reasons to avoid expressing things in absolute terms, making guarantees (Namath aside), and fostering unrealistic expectations - not facing your own words in a subsequent malpractice action happens to be one of the most compelling.
- The "Uninformed Apology". Attorneys are programmed to be responsive to their clients. That's why it is so hard to spot a set-up before it's too late. If a client reaches out seeking a mea culpa, stop and think (and speak with your General Counsel, if you have one) before responding. Often, what seems like a black-and-white mistake at first, later looks very grey. An apology might be the right approach, but make sure you have all the facts and the right guidance before offering one.
- Sloppy docketing. Blown deadlines account for a large percentage of malpractice claims. Don't hand plaintiff's counsel a gift with sloppy docketing. Manage deadlines with care, and adhere to them.
- The "Open Ended Representation". When the client thinks that you're their lawyer, and you don't, bad things happen. Check out my previous post "Crossing the Finish Line - Avoiding Risk at the Close of the Case" for more on the importance of documenting the conclusion of your representation.
- The Overstated Bio. Nowadays, most firms are on the Web, and most Websites have attorney bios. When plaintiff's counsel is sizing you up for a malpractice claim, you bio is one of the first stops in his investigation. Don't claim to be something that you're not in your bio, and periodically check it to ensure continuted accuracy. And, by all means, don't claim to be an expert or a specialist if you're not one.