Left to right: Randy Evans and Shari Klevens, McKenna Long & Aldridge partners, and Suzanne Badawi, Sheppard, Mullin, Richter & Hampton special counsel
Left to right: Randy Evans and Shari Klevens, McKenna Long & Aldridge partners, and Suzanne Badawi, Sheppard, Mullin, Richter & Hampton special counsel (Jason Doiy / The Recorder)

Email has completely transformed the practice of law. Now, electronic communication is instantaneous, continuous and ubiquitous.

It is difficult to even compare today’s law practice with that of just a few years ago. Basically, computers and technology have changed every aspect of the modern law practice.

Correspondingly, the risks associated with the practice of law have changed, too. The new risks of the e-revolution in the modern day-to-day practice of law are many.

Mark your calendar

Calendaring mistakes and administrative errors continue to dominate the types of problems generating legal malpractice claims. According to some surveys, the largest category for legal malpractice claims involves a missed deadline or a time management error.

This is true regardless of the area of practice, the size of the law firm, or how long the attorney has been practicing. In fact, as the pace of the modern law practice has increased, the need for effective calendar control and reminder systems has only increased.

Prior to the emergence of emails, one of the most common forms of a “reminder system” for many attorneys was dubbed the “pile” system. Generally speaking, this calendaring system involved piles of paper strategically placed around the law office to prioritize and remind attorneys of what needed to be done and in what order. Although familiar to most, it can probably best be described as follows.

If a file was in the “pile” of documents on the credenza or on the desk, then the file needed to be looked at sometime this week. If the file was in the pile on the desk, it needed attention today or tomorrow. If it was on the attorney’s chair (so as to be unavoidable), then it required action immediately. On the other end of the spectrum, if the file was in the file cabinet, then it was out of sight, and in many cases, out of mind.

The problem with this reminder approach was that it was least efficient when attorneys needed it the most. Basically, when things were the most frantic, and an attorney needed the most help from a reminder system, the piles were so big and so scattered they were of little help. Malpractice risks abounded as the number of claims from missed deadlines grew.

The New File Pile

So, did computers with modern technology, new software and emails in inboxes eliminate these risks?

Not really.

As computers and email emerged, attorneys had a new tool to keep track of what needed to get done. In its beginning, it showed some promise for reminding attorneys of a pending list of “to do” items.

Unfortunately, over time, the inbox succumbed to the perils of the old pile reminder system. Instead of replacing files stacked around the office, emails just add a whole new set of piling opportunities with the newest pile appearing in the email inbox.

Initially, this new “pile” (i.e. messages in the inbox) appears appealing because it consolidated the physical piling system into one place in a single list. As a result, it appears much more manageable. Also, because it involves a computer, there is the perception this new electronic reminder system is a much more effective way for attorneys to remember the things that need to get done—even when they are busiest.

So the email inbox has become just another pile, but with one big difference: it has no physical limitation on how big it can get. And so, the electronic pile just gets bigger and bigger—eventually becoming unwieldy and not very helpful. As this transformation unfolded, inboxes have stopped having any meaningful use as even a rudimentary reminder system.

In fact, unchecked, the overloaded inbox reminder system has had exactly the opposite effect, making it even more dangerous than the old “piles” that existed before. Rather than making things more efficient, accumulating unprocessed emails means more and more emails in the inbox with less and less time to process them.

The intersection of too little time and too many emails often results in too much stress and a higher legal malpractice risk. More importantly, as an operational matter, the overcrowded email inbox system, with every file at play, ends up requiring the most time just when the attorney has the least amount of time to devote to it.

The bottom line is that the inbox as a reminder system is the least efficient reminder system just when an attorney needs it most. Not surprisingly, with heightened stress on the attorney and the system, the risk of missed deadlines and time management errors increases exponentially.

Keeping the Clutter Manageable

The most effective solutions seem harsh for attorneys dependent on email and the inbox in the modern law practice. However, the alternative is a growing risk almost certain to lead to a missed deadline.

Here are two solutions that have proven especially effective: adopt a computer-enforced system deadline after which items are automatically deleted from the inbox; and create a numerical limit for the number of emails for an inbox.

System rules that automatically delete or remove items from the inbox upon the expiration of a set time period, such as 60 days, have proven to be quite effective. The standardized deadline forces attorneys to either process the email or move the item into a folder. Just leaving an email for another day is not an option.

Not surprisingly, most attorneys, reluctant to give up their electronic pile, insist that such system deletions after a deadline only increase the risk because items requiring action would disappear. In practice, however, the system deletions have had a different result. With a system-enforced deadline, attorneys actually change practice habits and process emails while increasing the use of calendar-based reminder systems rather than the list of emails.

Finally, the advantages of systems-enforced numerical limits are best illustrated by simple mathematics. If an attorney only spends one second per email, then how many emails can an attorney review in a single uninterrupted five-minute session of doing nothing but just reviewing, not processing, emails? The number is 300. Of course, this does not include any time to review and process new emails.

If, over time, emails left in the inbox actually require something more than just hitting the delete button, the time required increases dramatically. If the 300 inbox items require just one minute each, the time commitment grows to five hours.

If even some of the emails in the inbox actually require some substantive work, the time commitment grows even more. A system-enforced numerical limit keeps the pile manageable.

This article is an excerpt from “California Legal Malpractice Law,” which is available at: http://lawcatalog.com/ProductDetail/18034/California-Legal-Malpractice-Law.

In Practice articles inform readers on developments in substantive law. Contact James Cronin with submissions or questions at jcronin@alm.com.