1973, May, Pg. 7. How to Avoid a Malpractice Suit.

• Author: by Laird Campbell

2 Colo.Law. 7

The Colorado Lawyer

1973.

1973, May, Pg. 7.

How to Avoid a Malpractice Suit

7Vol. 2, No. 7, Pg. 7How to Avoid a Malpractice Suitby Laird CampbellIf you are ever accused of malpractice, it is likely that the claim will relate to a matter which didn't concern you at the time. It is well established that lawyers do not guarantee a result and they are only bound to adhere to the standards of the profession in the community. This familiar platitude conveys the image of a lawyer who must choose between imponderable alternatives, and who, after due consideration, makes a decision which turns out to be wrong and is sued for his pains. While situations of this kind do occur, it is probable that most claims arise from less complex decisions.

I recall the case of the lawyer who was engaged to handle the legal work for an ordinary sale of a business. As a part of his job, he completed the blanks on a printed form routinely used in his community. It had escaped his attention that the form did not ask for one item of information, the omission of which rendered the form fatally defective to the client's loss when the form was later tested in court.

Since a lawyer can be negligent in innumerable ways, I will make no effort to list specific instances of negligence, but instead will discuss those areas which most frequently generate claims.

Watching DeadlinesNothing is more worthless than a case involving substantial damages, clear liability and a well-endowed defendant---if the statute of limitations has run!

On the day a new case comes into your office, the statute of limitations should be checked. Does the case arise under federal law, the laws of another state, or Colorado law? If the case arises out of a contract, is there any limitation in the contract? Are there any conditions precedent which must be fulfilled before suit can be filed? If you have a Colorado case, does it fall within the definition of trover or trespass on the case under the general statute? Is there a special short statute, such as for wrongful death or appeal under the Administrative Procedure Act? Does the whereabouts of the prospective defendant create a possible problem?

Never assume that the limitations of another state are the same as your own. A number of Colorado lawyers entrusted with personal injury claims arising from California accidents have discovered to their sorrow that California has a one-year statute.

Litigation includes a series of deadlines. Responsive pleadings and briefs, motions,

8answers to discovery and appeals always involve timetables, and you must keep abreast of changes in the Rules of Civil Procedure. Presently there are members of the Colorado Bar who are unaware that a brief must accompany a motion for new trial or that the procedure required to perfect an appeal was recently changed entirely.

Is a tax return timely filed when it is mailed or when it reaches the office of the tax collector? Must defective goods be rejected within any particular period? When must a claim be filed in an estate, or...