The link between lawyer training and professional liability claims

The number of professional liability claims against US law firms continues to climb and there is no real expectation that they will come down anytime soon.

The reasons for the large number of claims against law firms are numerous, of course. Recently, for example, there seems to have been an up-swell of claims brought by individuals without formal legal representation. This presents not merely an annoyance but, in some cases, a very large amount of money that has to be spent by the firm to defend itself.

Of course, some of these claims have merit and can’t simply be tossed aside with a summary motion. Many fall into the ever-growing category of third-party claims asserted by individuals who were not represented by the firm.

Third-party claims have become the bane of law firms in certain practice areas, such as the estates and trusts, family law and sometimes contingency-driven practices. This category of claims can be described as environmental, with claims resulting from economically-driven circumstances like the recession.

There is another troubling aspect to the causality question, however. The issue is one of lawyer training or, unhappily, ?lack of training, which is becoming a causal factor in far too many professional liability circumstances.

Learning by doing

For most law firms, there has never ?been much in the way of organised ?training programmes.

Learning how to practice law was previously based on the apprenticeship model, which generally consisted of new lawyers learning from those who had the experience and the willingness to ?train them.

In the 1980s, the opportunity to ?get on-the-job training was reasonably good for a young lawyer. That model disappeared, however, with the demise ?in the 1990s of the law firm pyramid structure. And, after that era, it became ?far more difficult for young lawyers to receive on-the-job training in small to medium-sized law firms. That situation is ‘writ large’ today.

For new lawyers just coming out of law school, the question of the narrowing venues available in order to learn how to practice law on a daily basis is of ?real concern.

Unfortunately, the lack of training and practical knowledge leads to myriad difficulties. More experienced lawyers can often avoid the pitfalls engendered by unreasonable or irresponsible clients. For younger lawyers, however, these skills have to be learned at the ‘point of a gun’ after professional liability lawsuits have been filed against them.

The dearth of practical coaching for new lawyers is showing itself as part of the body of statistics involved in the increase in professional liability claims. The claims are made against the law firm and the partners are often named, but the fault very often lies with the younger lawyer who is handling a file either without proper training or appropriate supervision.

Avoiding future claims

The answer to the question of the adequacy of training isn’t simple, because it always does include the need for increased costs and time spent by experienced lawyers. These are factors over which law firms themselves exercise too little control, however.

Very often, young lawyers are hired but not given the kind of support necessary to hone their skills. There is so much pressure to bill as much time as possible that setting out a training schedule and expecting experienced lawyers to put the time into the training which is necessary to accomplish the goal of creating competent lawyers often appears impossible.

Those firms that are willing to do this, to spend the necessary time to train young lawyers, to compensate experienced lawyers for the time it takes to do the training and to monitor and supervise the time spent by young lawyers, will be well ahead of the curve in avoiding professional liability claims.

Training is very often not the first thing that comes to mind in a discussion of the operation of a law firm and the inclusion of new lawyers, but it ought to be.

Thomas Berman has been advising law firms on practice management and professional liability issues for over ?20 years (www.bermanassociates.net)