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.
Technology
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.
Firm-Wide Usage
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 at jscott@compulaw.com
