The Risk Manager, Winter 2011

It is heart breaking when defending a malpractice claim to find that a key defense document in the client file is merely a draft or an unauthenticated copy of an order or judgment and is of little probative value standing alone. When the court records fail to substantiate the validity of the document, a winning case can suddenly become a loser. We asked David Yewell, of Yewell Law, LLC, Owensboro, and a member of Lawyers Mutual’s Board of Directors, to share how his office risk manages this concern:

• We keep a written list of all tendered orders and judgments in all cases that have left this office or are known to us to exist in which we have an interest.
• If there is a time limitation on entry, we note that date on the list and calendar to check on the actual entry at least two to three days in advance and then daily until entered by the due date.
• If there is no time limit, and after a reasonable time (normally five to seven days) we have not received our signed and entered copy, we start checking on the status of its entry. First we call the clerk and make sure it is not in the record. Then we work backwards by calling the attorneys and ultimately, if not located, the judge’s office to inquire as to its status.
• If the document cannot be located, we re-circulate the instrument and start the process over making sure of its ultimate entry.
• When we receive the “filed-stamped copy” for our office-pleading file, we immediately index its entry into our file and make sure it is placed in proper order.
• Finally, as one last check – every 60 to 90 days for every active lawsuit, we match our office-pleading file with that of the actual court record. This can usually be done on-line by use of the KBA CourtNet database and, of course, on the website of the federal courts. I sleep better knowing my office-pleading files match exactly the court records.
• While this may not be a perfect process, it has worked for us here. I have found that we all make mistakes – lawyers, paralegals, secretaries, runners, clerks and yes, even judges. The key to this is that when such a mistake is realized, we can honestly state that this is the process we have followed that produced knowledge of a mistake which we immediately acted upon by notification of the court with a properly prepared notice motion or pleading of some nature. It is not so much what happens rather than HOW we deal with it.