By Joseph C. Scott, J.D.
Like any type of battle, fighting to stay on top of a law firm’s court calendar involves a great deal of boredom, punctuated by moments of terror. This might seem to be a bit of an exaggeration, but the fact remains that managing and maintaining a court calendar is a high-stakes issue that takes a great deal of monotonous work. Unless they are managed carefully, using proven technologies and best practices, court calendars are extremely prone to error. Unfortunately, judges can be unforgiving to law firms that miss a filing deadline or court date, and many will toss out cases if documents or other court-related information is late.
In fact, weaknesses in the court calendaring system represent the largest vulnerability most law firms have, particularly when it comes to malpractice lawsuits. In the most recent “Profile of Legal Malpractice Claims,” the American Bar Association found that calendar/deadline-related errors are the leading cause of legal malpractice claims. A total of 16.63 percent of those malpractice claims were due to the firm not knowing or not properly responding to the court calendar: 7.09 percent of malpractice claims were for failure to know/ascertain a deadline; 5.19 percent of malpractice claims were for failure to calendar properly; and 4.35 percent were for failure to react to the calendar.
While the implications can be severe for firms that miss court deadlines, it is easy to understand why so many errors can be made during the life of a matter. A properly managed court calendar requires multiple steps and a great deal of follow-up. As soon as a matter goes before the court, court dates must be accurately determined. That can involve Internet searches – for jurisdictions that offer such information online – or it may involve multiple calls to various courthouses.
Both large and small firms often struggle with the calendaring process. Large firms, by their nature, have more work to coordinate between more attorneys, and they may practice in multiple jurisdictions. It is also challenging for small firms, though, that have limited resources and are not familiar with matters outside of a small number of specific jurisdictions. And, according to the above referenced ABA Study, the smaller the firm, the greater the likelihood of being sued for malpractice.
Once the initial court date or filing deadline is determined, it must be accurately calculated; failing to factor in an obscure local holiday or forgetting that one month has 31 days and not 30 can throw off the entire equation and cause an attorney to miss an appearance or filing deadline. The same can happen when different courts have different rules – where one jurisdiction may allow 60 days for filing documents, another may only allow 30.
Next, all deadlines and appearances must be accurately recorded, which can be more difficult than it sounds; for busy attorneys and law firm staff, it may be easy to write down a date incorrectly. Then, the calendar for each attorney involved in the matter must be updated. For each date for every matter, attorneys or staff must double-check that no changes have been made to the court calendar. This process needs to be completed routinely as long as the matter is still open.
While it is little wonder that mistakes happen, at the same time, it is easy to understand why clients have little patience for attorneys who lose cases because of a “book-keeping” matter. Even if an attorney is only rebuked for missing a court date, the trust of the client may be irretrievably damaged. Fortunately, there are best practices that can minimize the risk of missing court dates, while at the same time increasing efficiencies and allowing attorneys and staff to focus on more substantive legal work.
Type of Calendar
There are a dizzying number of calendar types and formats, which can range from simple paper to sophisticated rules-based databases.
Before implementing any new methods or calendar types, it is important to understand and evaluate what types of calendars each attorney is using. At smaller firms, or at ones with lawyers allergic to technology, the old-fashioned paper calendar may still be in use. A paper calendar may offer certain appeal – it requires no training, it is inexpensive and easy to view at a glance. But paper calendars also contain numerous limitations. Unless the firm has a solo practitioner, someone must be constantly erasing old dates and inputting new ones. With paper, there is typically not a back-up in case the calendar is lost or an office disaster occurs. In addition, the attorney must be in the office to view it, so it cannot be accessed remotely.
Common calendaring programs that come with software (i.e. Microsoft Outlook®, etc.) are another option, and they offer some advantages over paper calendars. They are relatively inexpensive and generally simple enough that most reasonably tech-savvy administrators and lawyers can figure them out with a minimum of effort. Many can be synced with PDAs and checked from home or the road. However, these calendars are still highly prone to error; those in charge of the court calendar still must go through the tedious process of determining the initial court dates, then inputting that data accurately every single time. Information still must be checked and double-checked frequently.
Beyond the generic programs are legal-specific calendaring programs, which offer numerous advantages for law firms. There are several types of these calendars. For firms that have a great deal of litigation, or for those that operate in many jurisdictions, a thorough rules-based calendaring system may make the most sense. Sophisticated rules-based calendaring systems offer built-in court rules databases and holiday tables that accurately calculate court dates. If a rule changes, these systems can automatically adjust the dates as necessary. When considering such a system, a firm should carefully examine how thorough the rules are – will they include all of the jurisdictions and practice areas that the firm needs, or expects to need, in the future?
While these rules-based calendaring systems are thorough and complete, they can also be expensive and may require extensive training for users. For many firms, an online legal date calculation service may make more sense. Often, these services require no new software and minimal training, which makes them ideal for many smaller firms. Upon logging onto the Web site, staff and attorneys generally only need to enter a few pieces of information and all of the relevant court deadlines are automatically generated.
A Master Calendar
Another best practice involves a centralized, firm-wide calendar. While attorneys often have their own opinions about doing things their own way – including managing their court calendar – each firm should also have a master calendar managed by a well-trained, experienced individual that is constantly updated. Otherwise, dates can be missed and attorneys who are assisting on a matter may miss out on crucial information.
Firms should also consider the different viewing formats of the master calendar. Does each practice group or office want to view only its own dates? If so, the calendar program should be able to offer this flexibility.
It is also much easier to back-up and maintain a master calendar. The calendar should be backed up frequently, and the back-up should be stored off-site. If a fire or other disaster should hit the firm’s offices, the loss of the court calendar can be severely problematic, and attorneys and staff may find themselves scrambling for days to recreate it.
Firms should also carefully consider what types of technology are important in a court calendar.
Many attorneys and staff want to be able to download court calendars onto their PDAs and receive updates electronically when they are on the road or working from home. A calendaring system should allow for an easy interface with the firm’s current technology, making the transmission of deadline updates seamless.
When choosing a court calendaring system, firms should ask many questions about the type of support that comes with it. When a question or problem arises, it is important that attorneys and staff receive answers promptly.
Workflow Processes and Accountability
Determining the roles and responsibilities of everyone involved with the court calendar is also extremely important. With all of the different moving parts involved in court calendaring, each attorney and staff member must understand his or her obligations in the process. Who submits the information about the case? Who researches the initial deadlines? Who includes these deadlines in the master calendar? Who double-checks the information and completes follow-ups? If these different tasks are not clearly spelled out, something may be missed and errors could result.
Firms should clearly delineate the workflow for each matter, so everyone knows which steps to take and when. The process should be standardized across the firm as well. While some attorneys may balk at changing their current methods, it is important that each paralegal, administrator and attorney follow the same process. A standardized process will also help ensure that new members to the firm are properly trained about how to use the calendaring system. In case the “calendar person” should leave, the firm will be able to continue without missing a beat, as far as scheduling court dates and docketing is concerned.
The calendaring system should also have transparency and accountability built into it. That way, it is clear who made which change to the calendar and when.
Billing and Matter Management
As more firms begin to adopt matter management systems, the calendaring process should be designed to work with existing client service tools. By tying each important court date and deadline into other information about the matter, such as contact names, case notes and other documents, firms can save time and improve their client service.
Some rules-based calendaring systems or deadline calculation services also allow for easy bill back to clients. This simplifies the billing process for firms and allows them to better track how they are using the court calendar.
Once a firm identifies best practices and the right calendaring system, it is crucial that everyone uses it. Attorneys should not be allowed to opt out, because this would seriously cut into the efficiencies and effectiveness of the court calendar. The best way to ensure this is to find senior partners who can champion the project and who have the authority, or the charisma, to bring everyone else on board. Typically, the Risk Management Partner (or partner in charge of Risk Management), who appreciates the gravity of the situation, would be an ideal champion.
Many law firms can offer horror stories about missed deadlines that led to malpractice suits. This happens to large national firms as well as to solo practitioners. When it comes to calendaring errors, there are no easy solutions, regardless of size.
Changing the court calendaring system may at first seem like an expensive, daunting undertaking. However, the alternatives are equally daunting. Spending hours on the phone tracking down dates in unfamiliar jurisdictions is also a huge task. Then, there is the stress and time involved in entering and re-checking all of the firm’s dates and deadlines. And, of course, if you do make a mistake, there is the time, embarrassment and expense of defending a malpractice suit.
Fortunately, with the right technology and best practices, firms can significantly reduce the time they spend maintaining the court calendar, along with the risks they face from potential malpractice suits. This allows firms to focus more on helping their clients through the practice of law, not the court calendar.
About the Author: Joseph C. Scott is an attorney and Vice President/General Manager of CompuLaw, LLC(www.compulaw.com) and Deadlines On Demand, LLC(www.deadlines.com) – providing legal rules-based calendaring software and services for law firms. As a member of the California State Bar, Mr. Scott has practiced law as a solo practitioner and within a small practice. He received his Juris Doctorate degree from the Pepperdine University School of Law and his Bachelor of Science degree from California State University. He can be reached firstname.lastname@example.org