Using the Client-Centered Approach
to Decrease the Risk of Legal Malpractice Claims

The American Bar Association (ABA) conducts extensive survey on legal malpractice claims every four years. The survey concludes that every practicing lawyer is potentially at risk for legal malpractice. It was once believed that solo practitioners were at the highest risk, however, research has found that lawyers at small, medium, and large law firms are not shielded from potential malpractice claims. Therefore, every lawyer is at some risk as long as they practice law. In light of this potential danger, this article seeks to illustrate how lawyers can use the client-centered approach to decrease the risk of a legal malpractice claim. Using statistical data gathered from the ABA, case history, and periodicals this article aims to show that the client-centered approach can prevent practicing lawyers from committing the three most common errors alleged in malpractice claims.

The scope of this article is limited to civil litigation malpractice claims however the same approach can be applied to criminal malpractice claims and transactional services as well. The article shall specifically explore the following sections: (i) an introduction to the legal definition of malpractice and the statistical data gathered from the ABA, (ii) an application of the client-centered approach to the three most common alleged errors in malpractice claims including: (a) failure to know or apply the law, (b) planning or strategy error, and (c) inadequate discovery of facts or investigation, and (iii) the potential for further application in other legal areas, and the potential effects of the malpractice legal standard.

Introduction

Legal malpractice is defined as a “failure on the part of the lawyer to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated” In order for a client to prevail on a legal malpractice claim, the client must demonstrate more than the definition above. Specifically, a “plaintiff must demonstrate that the lawyer failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the lawyer’s breach of this duty proximately caused the plaintiff to sustain ‘actual and ascertainable damages.’” Therefore, all lawyers have a duty to their client to be reasonably competent as other lawyers, and the breach of this duty is a necessary element to a successful claim. Without such adequate proof of breach of duty, a lawyer is safe from an adverse malpractice judgment. A lawyer can generally decrease the risk of losing a malpractice lawsuit if the lawyer prevents himself from conducting legal practices below the objectively competent standard for lawyers. To do so, a lawyer can apply a few central methods in the client-centered approach to the most common malpractice errors.

In the 1990’s the ABA found that inadequate discovery or investigation was the one of top alleged errors of all legal malpractice claims. In its most recent survey, the ABA confirmed such results, finding that inadequate discovery and investigation continues to be one of the top ranking alleged errors. Also in the top ranking errors is failure to know or apply the correct law, and planning and strategy error. These three failures are the most common in the United States, and also highly ranked in Canada. A lawyer can easily prevent a malpractice claim due to these three errors by applying client-centered approach.

Applying the Client-Centered Approach to the Most Common Errors in Malpractice Claims

#1 Error: Failure to Know or Apply the Law

According to the most recent ABA survey, failure to know or apply the law is the number one alleged error in malpractice claims at 11.3%. This includes scenarios where the, “lawyer was unaware of the legal principles involved, or where the lawyer did the research but failed to ascertain the appropriate principles.” The ABA does not distinguish between scenarios when the lawyer was allegedly unaware of the legal principles and when the lawyer allegedly failed to research the correct law; however, the two errors are entwined. When a lawyer fails to see the legal implications in the facts, the lawyer does not know to research that particular legal topic. The lawyer is likely to be researching a second best claim or the incorrect law. Applying the client-centered approach can decrease the risk of committing both scenarios; thus decreasing the overall risk for failing to know or apply the correct law.

Some lawyers fail to see the legal implications in the facts, and thus fail to research the correct law because they do not ascertain enough information. Such error can easily be prevented through theory development during the “informational gathering” stage. During this stage, developing a time line is crucial in order to identify a “number of potentially-applicable legal theories.” A lawyer’s failure to see the legal implication in the facts is due to incomplete development of potential legal theories. Thus, creating a time line story can aid in developing complete potential legal theories.

Time line stories can decrease the likelihood of failing to see potential legal implications and thus researching the incorrect law in four ways. First, a timeline story provides a courtroom perspective. This is particularly important because a time line story allows the lawyer to evaluate the story as a jury or judge would evaluate the story. A lawyer is more likely to succeed in a claim, and thus preventing malpractice, if the evaluation of the legal claim is fully developed through a chronological sequence. Second, a time line story leads to a complete story. A complete story allows a lawyer to “avoid[] premature diagnosis by holding the search for events and details in abeyance until theory development.” It is important for the lawyer to refrain from premature diagnosis because the lawyer can become fixated on particular theory and, as a result, he may overlook another theory. Furthermore, missing theories can lead to researching the incorrect law. Third, a time line story clarifies inferences. Clarifying inferences is important because it leads to identifying legal implications. For example, if the client tells the lawyer that the accident occurred as the left signal turned green and the client turned left, the lawyer should clarify whether the was already in the left turn lane. Without clarifying the client’s inference that he was in the left turn lane before he turned left, the lawyer may not know to research contributory negligence. Lastly, and most importantly, time line stories often suggest additional legal theories. As the story progresses, legal theories will unravel beyond the client’s preliminary problem description. Like in the example above, the lawyer may only have thought to bring a negligence claim instead of predicting a potential contributory negligence claim brought by the counterparty. For these four reasons, creating a time line story can decrease the risk of a malpractice claim for failing to know or apply the law.

#2 Error: Planning or Strategy Error

Planning or strategy error is the number two alleged error in malpractice claims at 8.9%. This includes scenarios when the lawyer has adequate knowledge of the facts and legal principles, but makes an “error in judgments as to how the client’s matter should be handled.” Creating alternative charts promoted by the client-centered approach can decrease the risk of planning and strategy errors.

Such judgment errors on planning or strategy sometimes occur because the lawyer relies too easily on the client’s decision. For example, in Johnson v. Dagget, et. al., the client alleged that the lawyers were negligent for not including his employer as defendant in the prior suit. The lawyers motioned for summary judgment claiming judgment immunity as a defense because “[p]laintiff told them not to sue [the employer], and that their subsequent research and fact investigation supported that decision.” The court denied the lawyer’s motion for summary judgment because a reasonable and competent lawyer would not have relied that much on the client’s decision not to sue his employer. The client’s expert witness testified that, “choosing to rely on the [p]laintiff’s perception of the legal responsibility of the employer is to abdicate the professional trust reposed in the lawyer by the client” Therefore, relying too easily on the client’s perspective can be detrimental because the client does not fully understand the legal implications and consequences to make an informed decision on planning and strategy.

In order to safeguard against over reliance on “bad” client decisions, a lawyer can help his client make “good” or at least informed decisions through creating alternative charts. This will help both the client and lawyer to fully explore the consequences and alternatives, namely the pros and cons of each alternative. The lawyer should visually create a chart in order for both the client and lawyer to be clear on the pros and cons of each alternative. Mere verbal discussion of the alternatives will be confusing, unclear, and will create a flawed plan or strategy. Also, writing down consequences may “stimulate both [lawyer] and a client to recall additional [consequences];” thereby preventing the number one error described previously.

Mills v. Cooter is an example of how creating alternative charts can decrease the likelihood of a malpractice claim for planning and strategy error. In this case, the client brought a suit against the lawyer because the lawyer did not bring a suit against certain brokers. However, the lawyer contends that he repeatedly refused to bring a suit against the certain brokers because he felt that the brokers did not owe a fiduciary duty toward the client. The court found that there was insufficient foundation for a legal malpractice claim for three reasons. First, the lawyer had discussed the pros and cons of suing a number of defendants with the client. Second, the lawyer clearly explained his position that the brokers should not be a party to the lawsuit because the brokers did not owe a fiduciary duty to the client. Third, the client understood the position of the lawyer that a claim against the brokers would not have positive consequences. The lawyer was not liable to the client because he fully explained the pros and cons of each alternative to the client in a manner in which a reasonable competent lawyer would have done. Furthermore, creating an alternative chart can aid a lawyer in fully explaining the pros and cons; thus safeguarding the lawyer from a malpractice claim due to error in planning or strategy.

# 3 Error: Inadequate Discovery of Facts or Investigation

The number three alleged error in malpractice claims is inadequate discovery of facts or investigation at 8.8%. This includes cases where the client alleges that “certain facts which should have been discovered by the lawyer in a careful investigation or in the use of discovery procedures were not discovered or discerned.” Failure to conduct a careful investigation can be prevented by forming a complete timeline of events using the “T-funnel technique.”

In order to implement the T-funnel technique, identifying topics must first occur. In order to do so, the lawyer must create a time line story as discussed above. For the same reasons discussed above, creating time line stories can also prevent malpractice for inadequate discover of facts or investigation. For example, in Watkins v. Sheppard the lawyer was sued for not filing a claim before the statute of limitations had run. However, the client did not sue the lawyer for missing the filing deadline, but instead sued for inadequate discovery of facts or investigation because the lawyer was not even aware of the deadline. Specifically, the client sued his lawyer because he did not know or failed to investigate when the exact claim arose. Due to the lawyer’s incompetency, the client was barred from bringing a suit; thus bringing a malpractice claim against his lawyer.

By using the client-centered approach, a lawyer can easily mitigate such risk by creating a timeline of events. When the lawyer is able to create a complete timeline, the lawyer is more likely to build a solid legal theory and decrease the risk of missing filing deadlines. Moreover, the beginning of the timeline may not begin exactly where the client thinks is appropriate and therefore, it is the lawyer’s responsibility to inquire about events arising to and from the occurrence. However, a lawyer should not rely solely on a time line story and a list of potential items for evidence from the client for theory development. Timeline frequently contain “gaps,” masking and overlooking pertinent details. Gaps require the lawyer to make topical inquiries, thus using the T-funnel technique aids in filling in the gaps. The T-funnel technique allows the lawyer to search an event for potential evidence; thus unveiling any adverse or favorable facts to the potential claim. When done correctly, the lawyer can gather information which should be used as a stepping stone to further outside investigation.

Conclusion

In conclusion, a civil litigation lawyer can decrease the risk of a malpractice claim by the using the client-centered methods described above. These same methods can most likely be applied to criminal litigation lawyers and transaction lawyers as well. However, the analysis for criminal litigation may require an additional step to include standards for “ineffective assistance of counsel.” In regards to future effects, the more popular the use of the client-centered approach becomes, the more likely the use of such approach will become on in which the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.” Therefore, not only will the client-centered approach decrease the risk of malpractice claim, but it may one day be required to be proven in court as a defense to a malpractice claim.

by Mai Nguyen

Daniel E. Pinnington, ARE YOU AT RISK? The Biggest Malpractice Claim Risks and How to Avoid Them, 36 A.B.A. L. PRAC. MAG., 29 (2010)
See also PROFILE OF LEGAL MALPRACTICE CLAIMS 2004-2007 (Standing Committee on Lawyers’ Professional Liability).
Type of Error
ABA data
 
U.S. Ranking
LAWPRO data
 
Canadian Ranking
Fail to Know/Apply Law
4770
11.3%
1
1388
9.4%
4
Planning Error
3737
8.9%
2
316
2.1%
12
Inad Disc/Investigation
3719
8.8%
3
2084
14.1%
2
Fail to File Documents: no deadline
3636
8.6%
4
160
1.1%
19
Fail to Calendar
2825
6.7%
5
683
4.6%
8
Fail to Know Deadline
2782
6.6%
6
918
6.2%
7
Procrastination
2490
5.9%
7
653
4.4%
9
Fail to Obtain Client Consent
2293
5.4%
8
1799
12.2%
3
Conflict of Interest
2218
5.3%
9
920
6.2%
6
Fraud
2113
5.0%
10
407
2.8%
11
Fail to Follow Instructions
1832
4.4%
11
2135
14.4%
1
Fail to React to Calendar
1609
3.8%
12
289
2.0%
13
Malicious Prosecution
1593
3.8%
13
205
1.4%
16
Error in Record Search
1491
3.5%
14
267
1.8%
14
Clerical Error
1226
2.9%
15
418
2.8%
10
Improper Withdrawal
1054
2.5%
16
84
0.6%
21
Libel or Slander
774
1.8%
17
239
1.6%
15
Civil Rights Violation
705
1.7%
18
68
0.5%
23
Tax Consequences
664
1.6%
19
179
1.2%
17
Error in Math
323
0.8%
20
27
0.2%
24
Lost File & Document
222
0.5%
21
119
0.8%
20
Poor Communication
not used in ABA study*
1180
8.0%
5
Work Delegated to Employee
not used in ABA study*
162
1.1%
18
Work Delegated to Outsider
not used in ABA study*
82
0.6%
22
Are You at Risk, supra note 1.
104 AM. JUR. 3D Proof of Facts 317 § 2 (2008) [hereinafter, Proof of Facts].
Hashmi v. Messiha, 886 N.Y.S.2d 712, 714 (citation omitted).
Proof of Facts, supra note 4.
Dan Pinnington, The Most Common Legal Malpractice Claims by Type of Alleged Error, 36 A.B.A. L. PRAC. MAG. 4 (2010), available at HYPERLINK “http://www.abanet.org/lpm/magazine/webonly/webonly07101.shtml” http://www.abanet.org/lpm/magazine/webonly/webonly07101.shtml [hereinafter, Most Common]. See also Appendix.
“[C]ontrolling client expectations from the very start of the matter, actively communicating with the client at all stages of the matter, creating a article trail that carefully documents instructions and advice, and confirming what work was done on a matter at each step along the way.” Most Common, supra note 7. Achieving this generalized advice can be implemented by applying the client-centered approach.
Most Common, supra note 7. Furthermore, “It applies in instances of erroneous reasoning from known principles. The category also applies where the lawyer simply fails to see the legal implications of the known facts.” Id.
DAVID A. BINDER, ET. AL, LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 113 (1991) [hereinafter, BINDER 1991].
BINDER 1991, supra note 12. BINDER 1991, supra note 12, at 117.
BINDER 1991, supra note 12, at 118. Furthermore, gathering information in chronological sequence without worrying about the details will enhance the completeness of the story because the lawyer is trying to get the big picture. Id. Once the lawyer has determined which legal theories are worth exploring, he can delve into the details.
BINDER 1991, supra note 12, at 118.
BINDER 1991, supra note 12, at 122.
BINDER 1991, supra note 12, at 124.
Most Common, supra note 7. See also Appendix.
Most Common, supra note 7. Furthermore, “[t]hese are usually strategy and judgment errors. This category does not apply if the alleged error occurs because of a lack of knowledge of facts which should have been discovered by the lawyer, or clear legal principles which the lawyer should have known.” Id.
Johnson v. Dagget, Van Dover, Donovan & Perry, PLLC, 99 F.Supp2d 1008, 1012.
Johnson v. Dagget, supra note 25, at 1013 (quoting plaintiff’s expert witness who testified to the proper standard which should have been used by lawyer).
BINDER 1991, supra note 12, at 316-30.
BINDER 1991, supra note 12, at 316-30.
BINDER 1991, supra note 12.
Mills v. Cooter, 647 A.2d 1118, 1121 (D.C. 1994).
Mills v. Cooter, supra note 34. Most Common, supra note 7.
T-funnel technique includes a combination of closed and open questions, starting with open questions to indentify certain issues and then using closed questions to hone to get the appropriate information. DAVID A. BINDER, ET. AL, LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 169 (2004) [hereinafter, BINDER 2004].
BINDER 2004, supra note 40, at 170. “Time line questioning and your identification of topics likely to uncover helpful evidence typically indentify a variety of events and topics that you want to explore during the theory development. Id.
BINDER 1991, supra note 12, at 112-13.
Watkins v. Sheppard, 278 So.2d 890 (La. Ct. App. 1973).
Watkins v. Sheppard, supra note 43.
Watkins v. Sheppard, supra note 43 (finding that the lawyer’s failure to investigate the date of which the accident occurred after only being informed by the client that it occurred some time in October was sufficient to support the award of damages to client on the basis of malpractice).
BINDER 1991, supra note 12, at 146-47.
BINDER 1991, supra note 12, at 169-70.
BINDER 1991, supra note 12, at 171-79.
Guidance to using and implementing the “T-funnel” technique can be found in the book, Lawyers As Counselors: A Client-Centered Approach by David A. Binder, et. al.
“In certain cases the opinions of experts may be essential to prove the standard of care a lawyer must meet.” Watkins v. Sheppard, 278 So.2d 890, 892 (La. Ct. App. 1973).
Most Common, supra note 7.

Mai Nguyen is a juris doctor candidate at Pepperdine University, School of Law, and a certificate candidate at the Straus Institute of Dispute Resolution. Mai is the Literary Citation Editor of the Dispute Resolution Law Journal at Pepperdine. She visited Hong Kong and Beijing in June 2010 to study the approaches of alternative dispute resolution in Asia with the Straus Institute.