A former solicitor and claims manager reflects on the role of checklists in his own working life and how they are best used to reduce the error count

 “Learning is not compulsory – neither is survival” (W  Edwards Deming)

Early in my legal career, as a solicitor in private practice, I remember being incredibly anxious that I would forget a critical step, and gaining a good deal of comfort from Checklists for Solicitors (Shuttleworth and Harvey, Sweet & Maxwell (1993) – now sadly out of print).

Dealing with mistakes became my career, as an in-house claim solicitor at the Solicitors Indemnity Fund and, after that, as a manager at Travelers with responsibility for professional indemnity insurance for professionals, including solicitors. Over the years, when looking at data about claims, it did seem clear that apart from a cyclical increase in conveyancing claims, and the odd personal injury blip, the areas of work and types of error seemed fairly constant, and caused by mundane issues rather than terrifically complex legal judgments. 

Despite risk management efforts, little seemed to be changing. I also learned from dealing with claim files that, as a rough rule of thumb, the defendable cases had six or more clear and legible attendance notes, and the “lost causes” five or fewer (mostly none in fact).

Latterly, as a risk manager, I remember thinking that using an attendance note template, with headings Instructions, Advice, Actions, and Costs, was actually a useful checklist that ensures the standard bases have been covered. This template had first been given to me in the mid-1990s during a Legal Aid Board audit visit. I accepted it grudgingly, thinking that I knew my job and couldn’t improve, but came to recognise that it had value (and I still had a lot to learn!). 

What I noticed from using it was (I’ll admit it) that I didn’t always fill in all the headings properly during a conversation, but when I came to write to the client, or email in the modern world, it was a strong prompt to plug the gaps I had left during the conversation, e.g. up-to-date costs information, or costs-benefit analysis.  

Professional approach?

It was surprising, 10 years later, to find that this simple approach was considered innovative even at top 100 law firms, and that while in one firm I did find it being used by one department routinely, others in the same firm did not. Thinking about how the template note was working, I realised it was a checklist to ensure there was a clear record of instructions and advice (obviously), but it also showed who was responsible for doing what, and implicitly that the client knew as they went along the costs involved when agreeing the course adopted (a common source of complaints in litigation). 

It is not proven, but I wondered if there is a link between reducing error and use of checklist type notes. 

Checklists are widely used in aviation, and increasingly in medicine. No matter how well trained a pilot, most of us would still prefer to know they go through a pre-flight checklist, rather than just take off! 

Atul Gawande’s book The Checklist Manifesto (Profile Books, 2011) sets out compelling arguments for their use by all professionals. One of the basic points he makes is that for all professionals, knowledge and practice are increasingly too complex for individuals to manage. Review of the errors in many professional areas shows that most often it is not the exercise of skill or judgment that normally goes wrong, but the basic administrative routine issues. 

What is worse is that often the professional effort being undertaken is all or nothing in terms of outcome – in the complex sequence of steps that have to be carried out, if you get any of them wrong, there is little point or value in doing the rest correctly. I have often heard firms, referring to claims, say: “We got the law right, I am up to date with CPD….” (in other words I am competent and nothing needs to change). 

According to Gawande, improvements in medical outcomes driven by adopting checklists are impressive. Trials indicated that many lives were saved, as well as over US$175million (in one area of the US) just by introducing a sterile conditions checklist for intravenous drips.

Evolving documents

Thinking about how to apply this to law firms, I came back to the attendance note checklist. I also thought about the natural stages of transactions and the key points at which things go wrong. It seemed to me that a checklist at a specific point reminding someone to do or check off particular tasks might well be useful. It seems possible to design checklists for key stages in corporate transactions, conveyancing, wills, litigation. However, following the arguments made by Gawande, I realised that it was best that those that did the work designed the checklist themselves, based on errors that are made, along with those that are common knowledge in  the area. That is the only way that engagement is achieved. 

Checklists need to be reviewed and should change over time as new issues arise. I have had to operate several and it is easy to design these badly. Some ideas about how to design practical checklists are published on the web for free (www.projectcheck.org/checklist-for-checklists.html).

In England & Wales the regulator (SRA) has set “Outcome Focused Regulations” requiring systems and controls to be demonstrated. There have been mixed responses. Many large firms who already have systems meet the standards, but those without the same level of infrastructure are concerned at meeting a standard and have less resource – what is reasonable? Having some sort of system and engaging with the agenda seems likely to attract a measured response if things go wrong, but ignoring the regulator and making no effort appears a risky strategy. It seems to me that many firms easily have the IT capability to set up templates electronically, and implement exception reporting on files with five or fewer attendance notes, which have also been open more than, say six weeks (different areas may need different figures), or time recorded as being on the telephone or attending the client. Such steps might well reduce the number of times claims are made, and mitigate the damage when it comes to paying. Steps like this would also be significant in demonstrating that there were systems in place to ensure quality  was delivered to clients and there were systems to check. 

While Scottish law firms have different regulatory requirements, this kind of risk management seems worthwhile in any business. I might just try and get hold of a copy of that Checklists for Solicitors book myself, but try to remember to check that out of print does not mean out of copyright! 

The Author
John Kunzler is Head of the FINPRO National Practice (Financial and Professional Risks) at Marsh, a global leader in insurance broking and risk management, and a qualified, non-practising solicitor. Prior to joining Marsh, John was a manager (initially on claims and latterly underwriting) at Travelers with responsibility for a portfolio of professional indemnity insurance products for professionals. Before that he was an in-house claim solicitor with the Solicitors Indemnity Fund.  To contact John, email: john.kunzler@marsh.com  In next month’s article, Alistair Sim of Marsh considers ways in which the considered use of checklists is an effective way of reducing the risk of omissions and oversights.
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