My handwriting was so bad that my mother always asked me to call from college, not write. We all had to develop some way of keeping readable to us notes once we got to college, and certainly in Law School. In the pre-computer days, we even had fancy leather-bound law notebooks with room to annotate the notes and attach the case briefs to match.
Reading California lawyer Megan Zavich’s article on taking better notes in our offices made me think of the need to re-assert this as a loss prevention item in all law firms. Most of us have a strong background in taking some form of notes, but I have observed they are often lacking in the routine claims against lawyers I examine. Perhaps it is the classic “Cobbler’s Children Have No Shoes” Syndrome. Many files just lack documentation of the legal mission or advice given.
As a trial lawyer, I got to the point where mock jury responses no longer surprised me. I had the opportunity to view a number of live, and also taped, jury deliberations in legal malpractice cases. The theme there that surprised the non-litigators was that jurors believed it did not happen unless the lawyer wrote it down. “They are lawyers, aren’t they?” was a frequent comment by jurors. The failure of the defendant lawyer to document events or advice to the client often decided the case, and always against him or her.
Trial lawyers learn to make a record, and to vouch the record to avoid the void of what would have been offered if allowed. Business lawyers document for their clients by due diligence, but many lawyers do not have notes in their files of what they did, decided not to do, or advised a client not to do. We probably did a little better in the days when we routinely dictated letters on so many issues.
Megan Zavich pointed out there are many ways to do it now. We just need to get lawyers to re-start the discipline of making notes and in reality, making their own record for their files in their own office.
We all know lawyers tend to be an independent lot and they often resist the idea of anyone telling them what to do (despite the fact we all operate under extreme sets of laws and regulations in our occupation). After the claim has been filed training is not a great way to learn.
In firms, for many reasons, I advocate a peer review of files on a periodic basis. If you have, or are developing, a culture of preventing claims and losses, this is just good quality control. If such spot reviews show a lack of documentation of key decisions, actions or inactions, you have a good teaching moment and the opportunity to repair. The best example is to question the attorney how he/she would defend themselves if the client made a claim that was contrary to the work shown in the file.
Unfortunately, defensive law is needed in the modern world. When you do not take a case, a communication to that effect is the great exhibit. I have advised you to do X, but have made the decision to do A, B and C instead sure will help when that train goes off the track and they blame you. Why the inaction? A note to the file might just convince the Disciplinary Committee there was an external reason at play. In other words, lawyers do a better job to defend yourselves. Keep a good file that you could show before a jury. Remember the lay jurors comment: “If they did not write it down, it did not happen. They are lawyers.”