Keeping errors in check: 2

Common sense still applies

A criticism sometimes levelled at checklists is that they are used in place of common sense. However John Kunzler’s article stressed the value of checklists which are well designed; which are based on past experience of past errors; and which relate to key points in an engagement where things are more likely to go wrong. That’s an approach that has evidently been adopted to good effect in reducing risk in the worlds of aviation and medicine. John Kunzler cited achievements in the medical world, where there is demonstrable evidence that lives have been saved, infections prevented and cost reductions achieved by adoption of, to give one example, a straightforward sterile conditions checklist for intravenous drips.

By coincidence, the Journal’s March issue was distributed around the time that a BBC2 Horizon programme, “How to Avoid Mistakes in Surgery” (first broadcast BBC2, 9pm, Thursday 21 April 2013) was addressing many of the themes covered by John Kunzler. The programme reported on initiatives to avoid mistakes in the high-pressure, high-stakes world of the operating theatre and how other professionals make life-and-death decisions under pressure, from airline pilots facing emergencies, to the fire service dealing with lethal blazes, to the world of Formula One pit crews. Lessons learned from all these fields are helping to make surgery safer. Checklists, similar to the ones used on airliner flight decks before takeoff, have helped reduce fatalities during surgery.

How does this apply to solicitors?

Unlike medical practitioners and pilots, solicitors tend not to be faced with “life and death decisions”. However, they do work under pressure much of the time, the stakes are often high, and they are required to make decisions in situations involving complexity while often coping with a range of competing pressures, potential distractions and complicating factors outwith their control.

The value of the right sort of checklist for key “moments of truth” seems to be supported by analysis of the Master Policy claims experience. Consistently, analysis reveals:

• few claims resulting from technical legal errors;
• far more claims caused by procedural or process slips;
• a preponderance of omissions and oversights (as opposed to incorrect decisions or wrong advice);
• a significant proportion of claims capable of being prevented if a checklist, aide-mémoire or prompt had been in place and followed.

Key “moments of truth” in an engagement (pre-engagement, pre-settlement or post-settlement checks in a property transaction, for example) are the points at which experience shows things are most likely to go wrong, where issues are capable of being overlooked, where assumptions are most likely to be made, where we might be prone to “forget to remember” what we would have remembered most of the time.

Designing checklists

John Kunzler cites The Checklist Manifesto by Atul Gawande (Profile Books, 2011) to support the view that the design of checklists is crucial to their effectiveness. The Horizon programme lent further support for that view. Some ideas on how to design effective checklists are available at www.projectcheck.org/checklist-for-checklists.html.

Example: Pre-settlement checklist

Past omissions have resulted in a firm intimating a significant number of circumstances and claims to the Master Policy insurers. The firm has devised a checklist which prompts fee earners to identify issues which require to be reported to lenders. The checklist requires the fee earner to sign and date the checklist prior to the transaction proceeding to settlement. The checklist requires insertion of the date of the lender’s acknowledgment of issues reported to them and confirmation of the lender’s authority to proceed. The CML Handbook compliance checklist developed by the Law Society of Scotland similarly focuses on the critical issues arising at this key stage of residential property purchase transactions. Some firms have incorporated this sort of checklist and the requirement for explicit lender approval into case management systems.

The approach in the pre-settlement checklist example acknowledges that, in the course of transactions which (aside from potential differences and individual complexities) share the same key steps, stages and “moments of truth”, there is a danger of points being overlooked – and that the risk of an oversight may be heightened in the case of points arising in the pressurised period immediately prior to settlement.

Action points

Existing checklists: consider reviewing existing checklists to establish whether they could be improved by updating to add further prompts addressing risk issues identified from your practice’s own experience of claims, complaints or near misses, or risk issues flagged up in past Journal articles.

Additional checklists: if your practice doesn’t have such checklists already, consider whether to adopt e.g. the Society’s CML Handbook compliance checklist, or checklists addressing the risks highlighted in past Journal articles, including the examples listed in the panel opposite.

Use of checklists: to get the most benefit from adoption of checklists, consider how to achieve consistency of use and how to keep them up to date.

Checklists in previous Journal articles

“Checking out checklists”, Journal, November 2008, 44

Executry – agricultural tenancies: There is a strict and extremely tight time limit for giving notice to the landlord under an agricultural tenancy. Because of the short time limit, this needs to be considered at the very earliest stage. While raising awareness of the time limit, through training, needs to be part of the overall approach, incorporating a prompt in executry checklists is another of the risk controls which ought to be considered to minimise the risk this unusual time limit creates for executry practitioners.

“No excuses for missing critical dates”, Journal, December 2002, 46

Personal injuries: The article highlights risks that can arise because of unusual time limits which may go unconsidered unless solicitors are prompted to consider them. A checklist of points to be considered at first instruction could serve to prompt, and record, consideration of the facts and circumstances relevant to determining the applicable time limit and the key dates by which actions require to be taken.

“In the family way”, Journal, March 2007, 36

Family – failure to implement agreement: Claims arise periodically as a result of overlooking or delaying to attend to conveyancing, assignation of policies or other transfer of assets in implementing the terms of a financial settlement or divorce decree. Claims can arise because, by reason of insolvency or some other event, it ultimately proves impossible to procure implementation of the agreement or decree. The article suggested that a checklist might also include a prompt to raise with the client the preparation of a new will, if that hasn’t already happened at an earlier stage.

“Breaking up is hard to do”, Journal, September 2009, 42

Commercial property – break notices: This article by Lindsay Kerr of Master Policy co-insurer, Zurich catalogues the points which need to be checked if the drafting and service of a break notice are to be effective. Very often, clients instruct their solicitors close to the deadline for exercising the break option, leaving minimal time for the essential points to be checked and verified. There is every likelihood of landlords’ agents scrutinising any flaw in drafting or service of a break notice, and rarely an opportunity for correction of any flaw. When they arise, these tend to be very costly claims. A checklist approach seems desirable, at the point of instruction and/or at the point of drafting/preparing to serve the notice.