OSB Professional Liability Fund

Avoid Mistakes with This Simple Tool

June 30, 2017
by Hong Dao

The medical profession uses it. Aviation uses it. Construction uses it. Even the culinary field uses it.
 
It is the checklist.
 
A checklist is a simple tool that can improve the effectiveness of performing complex tasks. Its benefits have been touted in The Checklist Manifesto: How to Get Things Right by Dr. Atul Gawanda and the many articles written since the book’s publication. In this insightful book, Dr. Gawanda tells stories of how different industries use checklists to reduce errors, where they are successful and where they fail.
 
Checklists reduce errors because they help with memory recall and spell out the minimal expected steps in a complex process. But checklists are not just useful for complex tasks like brain surgery or building a skyscraper. They are also beneficial for routine tasks that are typically performed in a law office.

Checklists help remind us of the different things we need to do to accomplish a task or goal. Even if we’ve done that task many times already, it is easy to forget a step when we’re in a hurry, when we’re interrupted, or when we’re so confident in our performance that we become a little careless. A checklist is especially helpful for tasks performed only occasionally. It ensures that a critical step will not be missed.

Why lawyers should use checklists

Unfortunately, lawyers do make errors. The mistakes can range from missing deadlines to conducting inadequate discovery. Others include failing to thoroughly screen clients and failing to run a conflict check when another party is added to the matter. These types of errors can lead to malpractice or ethics complaints.  
 
You can avoid many errors by having the right system or procedure in place to take you through the process. It starts with a checklist.

Tips for creating your own checklists

To create a usable checklist, it’s important to understand the difference between an office procedure manual and a checklist. An office procedure manual documents the functions necessary to operate a law practice. These may include procedures on how to manage files, run conflict checks, calendar and docket, manage the trust account, or handle mail and phone calls. A procedure manual is a descriptive “how to” perform an administrative function. A checklist is a condensed version of the procedures detailed in the manual, consisting of mostly “do” steps reminding you to perform a specific action.
 
If you already have an office procedure manual, use it to make your checklists. If you haven’t thought out the procedures or written them down, start recording all the steps from memory. Use the following tips to refine the document into a checklist. 

Identify error-prone tasks

Know which processes should have a checklist. You don’t need a checklist for small tasks usually performed without error. For example, you don’t need a checklist for scanning a document. Instead, use a checklist for tasks that tend to be error prone or have steps that are easily missed or frequently skipped. Look at your practice and identify areas where a mistake can occur. Here are a few error-prone areas that can benefit from a checklist:
  • New client screening – Purpose: increases the likelihood of selecting the right case and client. The checklist would consist of screening questions and steps to research potential clients to help you decide: (1) whether you have the time, knowledge, and resources to take on this matter; and (2) whether the prospective client will be a good or problematic client.
  • Conflict checking – Purpose: decreases conflicts of interest resulting from inadequate conflict-checking procedures. The checklist would outline the steps necessary to perform a conflict check, such as the information needed from a prospective client, the location of files to search, when to run the check, how to document the result, and what happens if a conflict is found.
  • Calendaring – Purpose: decreases the chance of missing a deadline. The checklist would have steps to remind you to check the court calendar and register of actions to determine deadlines, to enter any deadlines and reminders in all appropriate locations (e.g. case management software, electronic calendar, paper calendar, etc.), and to do weekly file review of new and existing cases and deadlines. 
  • General civil litigation – Purpose: ensures competent representation. The checklist would take you through the entire stages of litigation, such as case assessment, factual investigation, filing complaint, service of process, answer, default, discovery, and trial preparation. Each stage of litigation can also have its own specific checklist.
  • Trust accounting – Purpose: reduces the risk of ethical violations from mismanaging the lawyer trust account. The checklist would contain steps to help you navigate the complex procedures of maintaining, reconciling, and closing your lawyer trust account.

Keep it simple and usable

Try to keep checklists to one page and no more than two. Each step should be one short sentence. Use simple language so it’s easy to read. Include only important steps. If you feel you need to include every step plus a detailed description of each step, consider creating a separate office procedure manual. 

Try it and adjust accordingly

Test the checklist to verify that each step leads you closer to the successful completion of the task or achievement of the goal. If a step is redundant or unnecessary, remove it. If something is missing, work through the process until you identify the gap, then add the important missing step. Continue to refine the checklist.
 
The PLF has many practice aids in the error-prone areas mentioned above that you can use to help create your own checklists. They are available at our website at http://www.osbplf.org/ > Practice Management > Forms.