Top reasons files stall
Whether you run a lean and mean or volume-oriented personal injury practice, certain files are more prone to languish than others. What’s the real cost of running a file for too long? Work-in-progress accumulates with little to show for it, expert reports grow stale and need to be updated (which significantly increases disbursements), witnesses’ memories fade, and clients can become frustrated. One big cost occurs when a malpractice claim arises because a file that has stalled too long is dismissed for delay or administratively dismissed under Rule 48. Let’s look at the top three reasons files stall and what you can do to quicken the pace.
When a file is worth little
When you perceive a file to be worth little, you risk not doing any work on the file. This commonly occurs when damages are minimal or liability is complex. Is that chronic pain file with no loss of income or cost of care claim worth your time? They payoff is small and the work involved is the same (if not more!) than other files. If you can’t fulfil your duty to the client, refer the matter out or get off the record.
Assess the file’s value and theory of liability at intake and throughout the life of the file. Don’t wait until after discoveries or until a mediation is coming up to figure this out. The sooner you think about the file’s worth, the better your ability to both manage the file internally and manage the client’s expectations. While the story of a case can change as the evidence comes out during discoveries and with productions, you can minimize the lost time and expense invested on losing cases if you constantly assess a file.
A good rule of thumb for taking on a file is that it should be profitable, interesting, and involve a likeable client. But that trifecta is hard to find – so take two out of three. Problems arise when a file is only one of those. For example, a file that is profitable but involves a difficulty client and is not interesting can become a huge headache. You may find your recommendations are not followed, you invest an inordinate amount of time on the file, and despite resolving the file to your satisfaction, you may still have an unhappy client.
When a junior lawyer is overwhelmed
A junior assigned numerous files may be overwhelmed. Unable to cope, an overwhelmed lawyer may work even more slowly files as the stress accumulates, or may even stop working altogether. Don’t expect the junior to speak up simply because you have an “open door policy”. Proactively touch base with the junior, ask for updates on files, and have a system to monitor whether litigation steps are taken in a timely manner. Senior lawyers may be ultimately responsible for work delegated to juniors, as they are under supervision.
There are several good ways to keep track of litigation steps on a file. Practice management software can help you track each step and set deadlines. A DIY task-list or to-do list constantly updated in a Word document or on paper can also do the trick. LAWPRO’s file progress plan, which you can download at practicepro.ca/Rule48, provides a one-page plan that lists the litigation steps, who handles what, and when tasks are due. It is a simple file review system which can be constantly updated.
When an unexpected crisis hits
Do you have a plan in place if something happens to you or you cannot return to work for a period of time? If not, your files are at risk if an unexpected crisis hits your practice. If a cluster of files are administratively dismissed because no one is monitoring them, the cost can be significant.
Lawyers and law firms should be prepared for unexpected work interruptions. Who will handle urgent client matters in these circumstances? Will a lawyer taking over a file be able to review files to identify matters requiring prompt action? Consider how you would improve your firm’s systems to address these situations. LAWPRO has resources to help you put together a policy, including practicepro.ca/disasterrecovery.
There are clear benefits to moving your files quickly. Clients appreciate when concrete steps are taken on a file. You can maintain a more manageable line of credit when your disbursements aren’t tied up in long, languishing files. Your bottom line goes up the more files you resolve. And you lessen the risk of a malpractice claim for delay or administrative dismissal.
Ian Hu is Claims Prevention & practicePRO Counsel at LAWPRO. This article originally appeared in the Dec 18, 2015 edition of the Lawyers’ Weekly, published by LexisNexis Canada Inc