Where’s the Beef?

Years ago a favorite commercial of mine happened to be one that Wendy’s aired and I still get a chuckle out of it to this day. An elderly and somewhat curmudgeonly woman with cohorts in tow enters a burger joint. She buys a burger, lifts up the top bun, and upon seeing a tiny little burger promptly exclaims “Where’s the beef?”

This commercial continues to stick in my mind because it had something to say about quality control. The employees seen working at that burger joint served puny burgers on huge buns with a side of cavalier attitude. The subtle message was clear to me. While there was no quality control there, rest assured that at Wendy’s you would always get a big meaty burger served on a big tasty bun. That ad was a homerun in my opinion.

So what does all this have to do with the practice of law? Well, a question that I often ask law firms during a risk visit is “What are your quality control processes?” More often than not, I get blank stares. Now I am not going to debate whether the practice of law is a business or a profession; but let me say this. If a firm more often than not fails to deliver on a promised product or service in a timely and responsible fashion, they shouldn’t be surprised when the client base starts to dry up. Those lost clients are all going to be thinking something similar to “Where’s the beef?”

With this in mind, let me share two ideas that can drive quality control in any law firm, including solo practice. The first, and in my mind, most import is establishing a formal file review process. This is a process that seeks to ensure that any legal work accepted by any firm attorney will be completed in a timely and thorough manner. After all, are you absolutely certain that no matter accepted by any firm attorney will ever end up overlooked? How do you assure each other (or even yourself!) that a file sitting in a file drawer or note to open a new matter that happens to be buried under a mountain of papers won’t eventually end up forgotten about? That’s the issue and the fact that everyone has a busy practice is no excuse.

There is no one right way to conduct file review and the point is not to encourage one particular approach. The point is to encourage the establishment of a process if one is not already in place because the lack of file review has and will continue to lead to claims within our profession. That said; let me share two basic approaches in order to demonstrate the kind of things malpractice carriers look for.

First, consider instituting a strict policy that provides that no active file can be filed away by anyone without a future date in the calendar or tickler system. If no other date is already in the calendar or tickler system within the next 30 to 45 days on any given file, place a file review date into the calendar or tickler system for 30 to 45 days out. This will ensure that every file is touched on a regular basis. Many case management systems are designed to do this automatically and these programs allow you to set the frequency with which you wish to conduct file review. The key to having this work is that all matters regardless of the size or type must be entered into the system. Thus even flat fee in-and-out work such as a simple will or a small business formation as well as that legal favor for a friend or extended family member has got to be included. Again, losses have been paid after attorneys forgot to follow-up on some perceived minor matters and their clients were harmed as a result.

An alternative approach is to develop a list of active matters that each attorney is responsible for. Sometimes this can be accomplished by printing out a list of active files for each attorney from your time and billing program. Be careful however, because a number of time and billing packages will not automatically print out the names of files that have had no work done on them during the most recent billing period and that information is exactly what you want to capture.

Once these lists are created, each attorney will need to be responsible for his or her own list. In short, they simply need to place a check by each specific matter that they touch every time a file first comes across their desk during the review cycle. If a new file is opened the attorney will add that matter and client name to his or her list. If a file is closed, that matter and name can be crossed off the list. At the end of each review period, a few matters may be unchecked and these are the files that should be located and reviewed. Again, this is about ensuring that all files are touched at least once during every review period. A designated staff member is often responsible for updating and providing clean copies of all attorney lists each review period. Finally, some attorneys will go one-step further on their unchecked matters and place a call or send a letter to the client even if nothing is happening. Clients tend to appreciate the brief update and this could help limit the number of incoming calls from clients who may begin to fear that things have stalled after there has been no contact for a period of time. I can also report that I have been in firms where file review is so valued that no paycheck will be cut for any attorney, regardless of seniority, who has not completed their file review for the period. That’s good stuff.

The other quality control process that I value greatly is peer review. While not something I often see, this really can be an effective method of continuing to improve your firm’s ability to provide outstanding customer service. (Now this may be more of a challenge for solos.  However, if in your retainer agreement you provide that your work may be reviewed by another attorney within the bounds of the rules of professional conduct, it can be very effective.)

Here is one way to conduct peer review. Basically every attorney at your firm is going to have two or three closed files randomly selected for review by a committee or another attorney at the firm on an annual basis. Please understand that this is not a process meant to train the associates. All attorneys in the firm regardless of seniority should be participating. The review should focus on the entire course of representation. Look for documentation of the conflicts check, the client decision making process, effective and thorough client communications, client satisfaction, and compliance with the firm’s calendaring guidelines. There should be an engagement letter and a letter of closure. Review for timeliness of work, work product presentation, billing decisions, and procedural choices. If the file is not up to firm standards, simply focus on education reinforcing the whys behind the process or procedure that wasn’t properly followed. The real purpose is not to look for mistakes and chastise, but to identify ways that the representation could be improved in order to provide higher quality representation to the next client. In fact, if you discover that something worked particularly well, a new form or document was developed that could be standardized, or someone came up with a new way of doing something that led to greater efficiency share that new found intellectual capital throughout the firm so other clients may benefit.

Peer review discussions can be incorporated into a monthly meeting of attorneys, perhaps over a lunch hour or at a Monday morning meeting where coffee and a light breakfast is served. The attorney or attorneys being reviewed should rotate month to month so that every member of the firm is reviewed and also conducts a review at least once a year. Few risk reduction practices cover such a broad range of concerns as well as peer review.

There are certainly a number of other quality control procedures that a firm could implement but the two processes outlined here capture the essence of it. File review seeks to prevent a matter from falling through the cracks and peer review seeks to ensure compliance with firm standards as well as the continued professional development of all firm attorneys. Granted, outside of a picnic thrown for long-term clients, it is unlikely that you’ll ever hear a client utter the words “Where’s the beef.” With effective quality control processes in place, however, you hopefully also won’t ever hear something along the lines of “How the heck did that happen.”

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One comment on “Where’s the Beef?

  • From: Peter Chamberlain

    The piece is good as far as it goes, but it gives me cold chills on two fronts.
    My retainer contracts included a provision allowing me to associate anyone else as long as I retained primary responsibility and it didn’t cost the client any more, and I was consulted by a number of other solo and small firm lawyers this way myself, and we sometimes did “Jack Spratt” relationships with things one of us liked and one of us hated within a matter, but the way the Texas rules were last amended, which are anti-solo and small firm in many respects that I believe are so clear that this must have been intentional, your required written contract must also name the lawyer and law firm you might consult about a case, and it can’t be done. What about the presenter at a CLE session, the professor who wrote the Family Code section, or another lawyer in your suite, or other expert, or just someone you use to bounce things off of for ethical and procedural feedback?

    Whose Errors and Omissions coverage ultimately covers a goof by the lawyer consulted? Subrogation?

    Having a system whereby all files get reviewed periodically is a good idea if done right, but it can become a nightmare if done wrong. I worked as an associate for almost two years with a firm in which the senior partner would routinely pull files, including the ones I was working on, and I might never see them again, especially where, as often happened, I was doing work for his signature. As I predicted, this led to a default in a case for a critical client. I eventually quit and went solo.

    I may post part of this on the blog, after pulling Texas Disciplinary Rule citations etc. back up.

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    Commerce, Texas 75428-2916

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