If You Failed to Document It , It Never Happened .
By Mark Bassingthwaighte
Please , can we just acknowledge that lawyers as a group are terrible when it comes to properly and thoroughly documenting their files ! Of course , not you , but all the other lawyers out there sure are . You wouldn ’ t believe how bad it can get . I say this because with almost every claim we handle , we have to deal with the lack of documentation of something . And I can assure you that , at times , a poorly documented file can become a very serious problem . Think about it . The fallout is now we may be forced to live with the reality that a word against word dispute between a lawyer and his or her client is in play and that rarely ends well for the lawyer . Here ’ s just one story that highlights the problem .
Lawyer was retained by a client for the purpose of defending him in a contract dispute . No fee agreement or engagement letter was ever drafted . Lawyer prepared and filed an answer to the complaint that simply denied the allegations . There were no paragraphs specifically identified as affirmative defenses or a counterclaim , in part due to the fact there was no copy of the subject contract in the lawyer ’ s possession . The matter eventually ended up in early mediation . Lawyer failed to draft and submit a mediation statement based upon a belief that the issues were simple and doing so would not have been cost effective . The matter was settled at mediation . The agreement provided client would sign a promissory note secured with a confession of judgment . Lawyer recalls telling client this was not a favorable settlement for him , but client decided to agree to it anyway due to the potential costs of going to trial coupled with the risk of an adverse verdict . In other words , client just wanted to put it all behind him . Lawyer drafted and sent to the client the final documents for signature . There was no cover letter explaining the documents or setting forth the client ’ s obligations under them . Client never signed the documents . Instead client hired another lawyer who renegotiated the settlement for slightly better terms . Client refused to pay the bill , and lawyer turned the bill over to a collection agency . Client sued for malpractice .
There are all kinds of documentation missteps in the above example , but there ’ s an even bigger problem . In this situation , there were no
ALPS Risk Manager Mark Bassingthwaighte , Esq ., has conducted more than 1,000 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management and technology . Check out Mark ’ s recent seminars to assist you with your solo practice by visiting our on-demand CLE library at alps . inreachce . com . Mark can be contacted at mbass @ alpsnet . com . notes of any kind in the lawyer ’ s file . There was nothing documenting the lawyer ’ s thinking , no record of what was communicated , no record of the decision-making process . Apparently , the staff person responsible for scanning closed files and shredding the original file once scanning was complete was never instructed to scan and preserve all attorney notes . Now that ’ s the real problem .
Here at ALPS , we hear all the excuses when it comes to the reason why a firm ’ s documentation policies are not as thorough as they perhaps should be . “ That step isn ’ t necessary ,” “ It takes too much time away from important work ,” “ We didn ’ t think keeping that was necessary ,” “ There are too many other things we have to do ,” “ The client would be offended if we did that ,” and “ We were trying to keep the costs down ” are commonly shared . That ’ s all well and good , until someone questions what you did or why you did it . Memories are short , yours included . Never forget the following . If you didn ’ t document it , it wasn ’ t said , or it didn ’ t happen . That ’ s how it ’ s going to play out in our world .
While the basics such as documenting scope of representation , who and who isn ’ t a client , and that representation has ended are vitally important , my desire with this article is to identify a few documentation traps that , if not properly handled , could place you in a situation not unlike the one set forth above . Here ’ s the ultimate goal . There should be a thorough written record of the advice given and the decision-making process in every file , and this record must be preserved for the life of the file .
The first trap involves the client who wants to save a little green . It ’ s a trap because there may be unintended consequences the client hasn ’ t thought through . If a client is cost conscious to such a degree that limitations are being placed on your scope of representation ( e . g ., taking shortcuts such as having you rely on documents prepared by others , severely limiting the amount of authorized research or discovery , not wanting to pay to have assets valued , not wanting to hire an expert , etc .), you must document this client has been informed of the legal ramifications of the limitations being placed on your representation , as well as the reasons why this client is making such a decision . Here ’ s why . If this client is eventually harmed by his desire to save a little money , he will turn to you and say , “ Why didn ’ t you tell me that could happen ? If I had only known , I would have ponied up .”
In a similar vein , if your client refuses to follow your legal advice , it is essential you document
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