Litigation: 5 key causes of claims

 

Six thousand, seven hundred thirty. That’s the number of lawyers who reported litigation claims and potential claims to LIF in a 15-year period. In fact, not only does litigation consistently generate the largest number of reports to LIF, but over 40 per cent of litigation reports are the result of a lawyer missing a limitation or deadline. The underlying cause for the majority of litigation reports, including missed limitation or deadline problems, is simple oversights. Most oversights in a litigation practice are the result of ineffective personal or firm-wide diary systems, or lawyer procrastination.

This area of law consists of the following subcategories of practice: civil litigation, creditors’ remedies and motor vehicle. You can find out more about each cause, including examples and video stories from actual claim files, as well as how the five causes break down by subcategory of practice, below.

Pie chart: 5 key causes of claims for litigation

Date Range: 2003 - 2017

Find out more about each cause, including stories and videos of examples from our claim files, below.

These failures have nothing to do with your competence as a lawyer, but everything to do with how you manage the process of providing legal services. They break down as follows:

Not managing client expectations (62%)
You fail to appreciate the risk inherent in a client or their expectations of the legal process (54%), who is doing what (25%) or how much it’s going to cost (21%).

Claim file example
Lawyer acts for a property owner in foreclosure proceedings, and negotiates a compromise with the bank. After the order is spoken to in Court, the client has second thoughts and suggests that he could have obtained a better settlement. He instructs the lawyer not to sign the order.

Not managing third party expectations (9%)
You don’t appreciate that someone for whom you are clearly not acting thinks that you are somehow protecting their interests.

Claim file example
Lawyer settled a slip and fall claim for a client. The settlement included $40,000 in damages, representing the amount owed by the client to an art studio that the client had booked but could not use. When the client paid only $20,000 of the settlement proceeds to the art studio, the studio sued the lawyer for the balance.

Not managing the retainer (setting up or concluding) or emerging conflict effectively (29%)
At the start of the retainer, you don't adequately think through how you are going to deliver the legal services or if you are able to represent all parties (51%) or, once the legal work is done, you 'move on' without ensuring that the final wrap details are properly attended to (27%), or you fail to manage a conflict that emerges during the retainer (22%).

Claim file example
Lawyer inherited a personal injury file. Assuming all was in order, he did not review the file thoroughly at the outset so did not see the draft consent order to add parties. The order had not been signed, entered or even sent to opposing counsel. Unfortunately, by the time the order was discovered, it was too late to add the parties and that part of the claim was lost.

These reports involve failing to sort out the legal issues or strategies required to achieve a client’s goal.  They break down into two categories: 

Ignorance of the law (24%)
You don’t appreciate that you don’t know an area of law as well as you need to in order to provide proper advice.

Claim file example 
Infant’s Part 7 action was not commenced within two years of the accident, as the lawyer erroneously believed that the running of time was postponed.

Not thinking it through (76%)
You know the law, but don’t fully think through all of the legal issues, or what strategies to implement or steps to take to achieve your client’s goal.

Claim file example 
Lawyer who acted for a motor vehicle claimant in an accident involving a municipal police vehicle failed to turn his mind to the municipal aspect of the claim. The requisite two-month notice was missed.

For a video claim file story, watch: The perils of litigation without a roadmap

These failures in listening, asking and explaining often involve lawyers making assumptions that later prove wrong.  They break down into two categories:

Communication issues with clients (65%)
You don’t devote enough time or attention to ensure that a client understands you or provides you with the information that you need, or you fail to ask for instructions or consent.

Claim file example
The lawyer acted for a plaintiff in a motor vehicle accident claim. The lawyer didn’t ask enough questions, and failed to discover that there were multiple vehicles and collisions involved. The lawyer named only one driver/owner as a defendant, and part of the claim against the other drivers may be lost.

Communication issues with non-clients (35%)
You fail to communicate effectively with either other counsel on a matter or the other people on whom you rely to help you get the job done.

Claim file example
Lawyer acted for a lender and routinely obtained certificates of judgment in relation to properties owned by debtors. When a new certificate came in, he instructed his assistant to just “do the usual”. He wrongly assumed that his assistant knew that meant to file the certificate in the Land Title Office. The certificate was never registered and, as an intervening judgment registered on title now takes priority, there is insufficient equity remaining to satisfy the client’s judgment.

Simple, inadvertent, oversights break down into 3 categories:

Flawed systems (50%)
These mistakes would have been avoided through an effective, firm wide system.  The vast majority relate to diary system failures, leading to missed limitations. 

Claim file example
Lawyer waited until the last minute to file the Notice of Civil Claim for a client who suffered personal injuries from a motor vehicle accident. Due to problems with the registry agent, the Notice of Civil Claim was filed a day late and the limitation date was missed.

For a video claim file story, watch: Anatomy of a missed limitation

Sloppy practices or oops's (48%)
These include the unintentional clerical errors that we make when drafting documents (12%), the mistakes that would have been avoided with a careful review of relevant file material (17%) and the mistakes that occur because we just ‘drop the ball’ and forget or overlook some step that needs to be taken (71%). 

Claim file example
Lawyer failed to review his personal calendar and missed the date to respond to a Notice to Admit, resulting in deemed admissions prejudicial to the client.

Delegation without supervision (2%)
You delegate a task to an assistant or a student who makes a mistake, but only because you failed to provide proper supervision.

Claim file example
Lawyer relied on staff to file a certificate of pending litigation. The limitation period to enforce the client’s builders lien claim expired before the lawyer noticed that the certificate was filed in the court registry, but not in the Land Title Office.

This relatively small risk has nothing to do with the quality of legal services you provide. These reports would have been avoided entirely if you simply had the necessary evidence to confirm advice that you gave (45%), instructions that you received (32%), or your dealings with other counsel and parties (23%).

Claim file example
Lawyer met with a potential client before the limitation period to sue for personal injuries resulting from a motor vehicle accident expired. The lawyer advised of the two year limitation. The individual returned 3 years later and asked the lawyer to start an action. The lawyer had no written confirmation of his earlier advice.

Find out even more.  Learn how the 5 key causes break down for civil litigation (plaintiff/defendant), creditors' remedies (plaintiff/defendant) and motor vehicle (plaintiff/defendant).

  Cause of loss

 Subcategories of practice 
   for litigation        

Engagement management failures

Legal issues
failures

Communication
failures

Oversights

No trail

 Civil Litigation - Plaintiff

17%

34%

11%

37%

1%

 Civil Litigation - Defendant

20%

28%

20%

31%

1%

 Creditors' Remedies - Plaintiff

12%

29%

13%

45%

1%

 Creditors' Remedies - Defendant

29%

23%

17%

28%

3%

 Motor Vehicle - Plaintiff

12%

19%

10%

58%

1%

 Motor Vehicle - Defendant

12%

29%

18%

40%

1%

 Date range: January 1, 2003 to December 31, 2017

       

Next steps?

For the articles and publications that will help you avoid claims in your own practice, review:

Litigation – risks and tips to read about advance loans, the HCCRA, and avoiding allegations of ‘bad faith’ and negligence in personal injury defence
Limitations and deadlines
Practice management - risks and tips
Areas of law - risks and tips

And remember, effective risk management also requires you to understand what’s covered under the compulsory Policy – and what’s not.  See Cover Pages and My Insurance Policy: Questions and Answers for more information.

 

Last updated: June 2018