Malpractice Claim Trends in Oregon [Infographic]

The 2013 Professional Liability Fund Annual Report is now available for Oregon lawyers on the PLF Web site.  The report reveals the following legal malpractice claim trends and data:

Number of claimsAverage Cost Per ClaimFrequency of Claims by Area of LawCost of Claims by Area of Law

 

 

Case Numbers are Not Unique – Oregon eCourt Week

This is the final post in my week-long series on Oregon eCourt. Today we take note of a small, but potentially important detail: case numbers are not unique in the eCourt system.

After logging on, eCourt users have an option to search case records, court calendars, or find judgments with money awards. If you elect to search Civil, Family and Probate Case Records, the following search screen appears:

search screenThe first option is to search by Case Number. Here is an actual search result that generated three listings in three different jurisdictions for the identical Case Number. Identifying information has been redacted for privacy reasons:

case numbers

Identical case numbers across judicial districts do not pose a problem so long as you are aware of the possibility.

Other Options when Searching Case Records

Searching by Case Number is the first option presented when searching case records. Users may also search by Party, Attorney, or Date Filed.

other search criteria

All Rights Reserved [2014] Beverly Michaelis.

 

Searching eCourt Calendars – Oregon eCourt Week

Today we explore how to search court calendars in the Oregon eCourt system.

There are two options for searching calendars. The first uses a publicly accessible link from the Oregon Judicial Department home page. The second approach requires logging in to the eCourt system. The search methods are identical regardless of the approach used.

The following search criteria are available when searching eCourt calendars:

  • Attorney
  • Case
  • Judicial Officer
  • Party or Defendant Name
  • Date Range

Search by Case is the default search method. To search by any other criteria, click the drop-down arrow.

When searching by Attorney, use the attorney’s last name and first name or bar number.

search by attorney

When searching by Judicial Officer, the search screen offers a pull-down menu of all judicial officers in the state in ascending order, beginning with Abar, Donald and ending with Zuver, Julie:

search by judicial officer

When searching by Date Range, you can filter your search by Case Category. Case categories include: Criminal, Family, Civil, and Probate/Mental Health. By default, all four are selected. De-select categories you do not wish to include in your search.

date range

Phonetic Searches Using Soundex

Phonetic searches are available when searching by Party or Defendant Name or by Attorney if using last name and first name criteria. Check the Soundex box in the upper right portion of the screen to retrieve calendar dates for search names that sound alike.

eCourt Calendar Searches Limited to 90 Days in the Future

When searching the calendar, date ranges cannot be more than 90 days in the future. If you attempt to search more than 90 days out, the following message will appear:

date range message

Searching OJIN Circuit Court Calendars

Search OJIN Circuit Court Calendars here. Search criteria are limited to Date, Party Name, and Attorney. Note these conditions:

The (OJIN Circuit) Court Calendar allows entering up to four identifiers to locate an event occurring on a specific court docket. A minimum of at least one identifier is required. Providing more information will result in more accurate search returns.

The Party Name and Attorney fields are case-insensitive and can be all or part of a name. For example, entering “John” in the Party Name field will give results of all the cases with “John,” “Johnson,” and “Van Johnson.”

Names are stored in the same manner as in the OJIN system “Last First Middle” with no commas and one space between names. For example, Michael Jay Smith is actually stored as “Smith Michael Jay.” Searching for “Michael Jay Smith” will not find any results; however, searching for “Smith Michael” or “Smith M” or “Smith Michael Jay” will include the desired results.

You can only search for the first plaintiff and defendant on a case. You can only search for the first three attorneys on a case, with the system first looking for attorneys on the scheduled event and then for active attorneys on the case. Search results will return the first 500 entries on the docket.

OJIN Online subscribers have access to more functionality.

Beverly Michaelis [2014] All Rights Reserved.

 

10 Year Paper Retention Requirement – Oregon eCourt Week

If you are a paperless practitioner who has embraced Oregon eCourt with open arms, beware. eCourt filers are required by rule to retain certain documents in their original paper form.  UTCR 21.120, effective May 1, 2014, provides:

“(1) Unless the court orders otherwise, if a filer electronically files an image of a document that contains the original signature of a person other than the filer, the filer must retain the document in its original paper form for 10 years.

(2) On reasonable notice, the filer must provide a paper copy of the original for inspection by another party, the clerk, or the court.”

See Chief Justice Order 14-012 dated March 31, 2014 adopting out-of-cycle amendments to the Uniform Trial Court Rules.

“Filer” means a person registered with the electronic filing system who submits a document for filing with the court.” UTCR 21.010(6).

Other Statutes and Rules May Require Retention of Original Paper Documents

Paperless practitioners should take note of other statutes or rules that require retention of original paper documents. Examples include the Affidavit of Custodian executed when a settlement agreement is reached on behalf of a minor (ORS 126.725(2)) and certain documents filed in US Bankruptcy Court (see Oregon Local Bankruptcy Court Rule 5005-4(e)). For more information, consult the PLF practice aids, File Retention and Destruction and Checklist for Scanning Client Files, available on the PLF Web site.

This is not an exhaustive list. Conduct your own appropriate legal research to identify other instances where original paper documents must (or should) be retained.

All Rights Reserved [2014] Beverly Michaelis

 

Rejected Filings and Relation Back – Oregon eCourt Week

The rules for electronic filing deadlines in Oregon eCourt are set forth in UTCR 21.080, effective May 1, 2014. (See Chief Justice Order 14-012 dated March 31, 2014 adopting out-of-cycle amendments.) Among the most important are the provisions concerning rejected filings and relation back.

Accepted Filings Relate Back to the Date and Time Received

“If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document, thereby indicating the date and time of filing of the document. When the court accepts a document for filing, the electronic filing system sends an email to the filer, unless the filer has elected through system settings not to receive the email.”
UTCR 21.080(4). [See the rule for other provisions.]

What Happens When a Document is Rejected

“If the court rejects a document submitted electronically for filing, the electronic filing system will send an email to the filer that explains why the court rejected the document, unless the filer has elected through system settings not to receive the email. The email will include a hyperlink to the document.” UTCR 21.080(5).
Practice Tip: Leave the default system settings alone to ensure you will receive rejection notices.Rejection notices are sent from Tyler Technologies, @tylerhost.net not from @ojd.state.or.us.

 

Can I Resubmit a Rejected Filing?

The short answer is “Yes.” But resubmitted documents will only receive relation-back if certain conditions are met.

Getting Relation Back When a Filing is Rejected or:
What if I’m Up Against the Statute of Limitations?

A filer who resubmits a document may request, as part of the resubmission, that the date of filing of the resubmitted document relate back to the date of submission of the original document to meet filing requirements. In the case of a last minute filing to beat the statute of limitations, this will be critical. However, relation back is ONLY available if the following conditions are met:

First, the filer must resubmit the document within 3 days of the date of rejection. “If the third day following rejection is not a judicial day, then the filer may resubmit the filing … the next judicial day.” Resubmission means “submission of the document through the electronic filing system … or physical delivery of the document to the court.” UTCR 21.080(5)(a).

Second, a filer who resubmits a document for purposes of relation back must include a cover letter that contains the following:

a)     the date of the original submission
b)     the date of the rejection
c)     an explanation of the reason the filer is requesting that the date of filing relate back to the original submission
d)     the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must be in the subject line of the cover letter.” UTCR 21.080(5)(a)(i).

Third, if the resubmission is filed electronically the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must be included in the Filing Comments Field. UTCR 21.080(5)(a)(ii).
Practice Tip: Use the specific language set forth in the rule and enter it in ALL CAPS.

Objecting to Relation Back

“A responding party may object to a request (for relation back) within the time limits as provided by law for the type of document being filed. For the purpose of calculating the time for objection provided by law under this subsection, if applicable, the date of filing is the date that the document was resubmitted to the court under subsection (a) of this section.” UTCR 21.080(5)(b).

Other Things to Know about UTCR 21.080

eFiling is Available 24/7

“A filer may use the electronic filing system at any time, except when the electronic filing system is temporarily unavailable.” UTCR 21.080(1).

Filing Deadlines – Generally

“The filing deadline for any document filed electronically is 11:59:59 p.m. in the time zone where the court is located on the day the document must be filed.”  UTCR 21.080(2).

When is a Document “Submitted?”

“The court considers a document submitted for an electronic filing when the electronic filing system receives the document. The electronic filing system will send an email to the filer that includes the date and time of receipt, unless the filer has elected through system settings not to receive the email.” UTCR 21.080(3).

Avoiding Rejected Filings

Give documents meaningful file names so they are easily identified and distinguished. Carefully review information entered into the eFiling system, including the document selected for uploading. When filing is complete, check the confirmation.

Be aware of applicable file size limitations (25 MB in Oregon). Jurisdictions vary, sometimes significantly. If you attempt to upload a document that is too large, your filing will be rejected and you may miss a deadline. Adobe Acrobat can help you properly split and label large files for uploading to eFiling systems.

Keep your credit card information current with the court. Required fees must be paid when documents are electronically filed. If your card has expired and the fees are not paid, your filing will be rejected even if the document was uploaded prior to the deadline.

Avoid the most common e-filing mistakes:

  • Entering incorrect party, event, or filing codes
  • Selecting the wrong case or location
  • Failing to associate the attorney with the filing party
  • Improperly filing exhibits – see the limitations in UTCR 21.070
  • Including sensitive or confidential information
  • Failing to separate documents – file motions and orders separately. Do not combine multiple documents of any kind into a single PDF unless allowed by UTCR Chapter 21.
  • Missing information – signatures missing or no party information entered
  • Submitting illegible documents – PDFs that are not text-searchable or PDFs scanned upside down
  • eFiling documents that must be filed conventionally, such as documents needing a judge’s signature or amended complaints that result in an increased filing fee. See UTCR 21.070 for a complete list of documents that are not eligible for eFiling.
  • Failing to pay fees or paying incorrect fees

Leave default system settings alone to ensure you will receive rejection notices. See the discussion above, “What Happens When a Document is Rejected” under
UTCR 21.080(5).

The Most Important Advice

Don’t eFile documents at the last minute. E-filing is a somewhat tedious process: you must log in, enter the appropriate field codes, pay applicable fees, select and possibly split your documents for filing, and so on. If you lose your Internet connection, your computer crashes or you encounter other technical difficulties, there is no time for recovery. Upload documents during regular business hours when technical support staff are available and you have sufficient time to remedy any technical glitches.

Train Now to Avoid Problems Later

Above all, get trained. User guides, reference guides, and rules can be found here. Free Web training sessions and self-study online training are available here.

Schedule a presentation on Oregon eCourt for your organization or agency. Call or e-mail:

Oregon Judicial Department
Office of Education, Training and Outreach
503-986-5911
oeto@ojd.state.or.us

Technical Support

Oregon Judicial Department Help Desk – Monday through Friday 7:00 am to 6:00 pm (Pacific)
503-986-5582 or 1-800-922-7391
ETSDHelp@ojd.state.or.us

OJIN Online Subscriber/Business Support – Monday through Friday 8:00 am to 5:00 pm (Pacific)
1-800-858-9658
OJIN.Online@ojd.state.or.us

File & Service/eFiling User Support – Monday through Friday 7:00 am to 7:00 pm (Mountain)
Tyler Technologies
1-800-297-5377
Efiling.support@tylertech.com

All Rights Reserved [2014] Beverly Michaelis

eCourt Notices: Forwarding is Up to You – Oregon eCourt Week

Transitioning to Oregon eCourt requires many adjustments – as evidenced by this week’s posts. Among the most significant: how law offices will process court notices for various events, including hearing dates, trial dates, or entry of judgments.

eCourt Notices are Delivered Only to the Filing Attorney

Unlike PACER, where filers can specify multiple e-mail addresses to receive electronic court notices, the Oregon system restricts delivery to the filing attorney. Notices are sent to the filing attorney’s official e-mail address on file with the Oregon State Bar. Alternate e-mail addresses, including generic docketing accounts like docketing@abclawfirm.com are not permitted. Because notices are delivered to the filing attorney only, staff members or other attorneys in the office are not included in the Oregon eCourt notice system.

eService Accommodates as Many Parties as Needed

Unlike the notice system, there is no limit to the number of parties or lawyers that can be included in eService. Consent to eService is on a case by case basis. When you e-file into a case you are consenting to eService on that case. Parties and attorneys are responsible for adding themselves as a service contact in the eService system and updating their information as necessary. The system does not pull contact information from the Oregon State Bar database as it does for delivery of eNotices.

Registering Multiple Users Permitted

Law firms may register as many individual Oregon eCourt users as they desire. If a firm has 10 litigators and 5 staff who file in Oregon eCourt, all 15 may be added to the system. A firm account must be created first. Individual users may self-register only if permitted by the Firm Administrator. See the user guides available here.

How to Share eCourt Notices with Staff or Other Attorneys

If you want to share eCourt notices with staff or other attorneys in the firm, you will need to create auto-forward rules. This is easily done if you are using a desktop e-mail program like Outlook, Windows Live Mail, Apple Mail, or Thunderbird.

If you are using Web-based mail, it may or may not be possible. Auto-forwarding of eCourt notices requires the ability to selectively filter messages by sender. In this case, the goal is to forward messages sent from the court @ojd.state.or.us and from the Tyler Technologies File and Serve system @tylerhost.net.

Gmail permits forwarding of messages using filters (as do all the e-mail programs listed above). Yahoo! mail users can elect to forward all Yahoo! mail to another address, but they cannot selectively filter messages from specific senders. Filtering in Yahoo! is limited to moving messages from one folder to another.

Click on any of the following links to set up filtered auto-forwarding:

As an example, here are step-by-step instructions for creating a rule in Outlook 2010 to mark all messages from @ojd.state.or.us as important and auto forward copies to specific people (staff or other lawyers).  Repeat the steps described in this document to create a second rule for messages received from @tylerhost.net. eCourt notices are sent from both domains.

How to Create a Safety Net if you are a Solo Practitioner

If you are solo practitioner with no support staff, you may want to auto-forward eCourt notices to a secondary e-mail address as a backup. (Gmail can filter e-mail and send alerts to your phone.) Remember, you can also login to Oregon eCourt and look at court dates and case information online. eFiling data can be exported to Microsoft Excel.

Don’t Miss a Court Notice – Achieve Inbox Zero

If you achieve “Inbox Zero” you are far less likely to miss a court notice. Use Dee Crocker’s DAFT approach to keep your Inbox empty [Defer, Act, File, or Toss]:

Defer
If you don’t have time to reply or act on an e-mail, create a task from the message and schedule it for a later time.

Act
If you can respond to an e-mail in less than five minutes, do so.

File
File messages that don’t require a response when they arrive. Move messages to appropriate folders in your Inbox or better yet save them directly to the client’s folder on your computer or network. You can download electronic filing assistants to make this process easier.

Toss
Toss (trash) unneeded messages immediately.

Keep Other Best Practices in Mind

For complete guidelines on how to handle client e-mail see these articles:

Be particularly careful about junk mail or spam filters that may catch eCourt notices and learn about common eCourt mistakes. See Zero Tolerance for e-Filing Error: Avoid Committing Malpractice, with a Few Clicks of Your Mouse. Consider ordering the free PLF CLE, “Survival Tips for Organizing Your E-Mail and Practicing in eCourt,” available on the PLF Web site.

All Rights Reserved [2014] Beverly Michaelis

 

 

Common Malpractice Traps in a PI Practice

10-16-2013 12-37-48 PMPersonal injury generates the most frequent and costly legal malpractice claims in Oregon.

If you are a PI practitioner, watch out for these common traps:

Naming the Wrong Defendant
A thorough investigation of your client’s claim is essential.  Seek out corroborating documentation of the facts.  Take special care to properly identify parties – especially when using the
Business Registry to search for an assumed business name or corporate entity. (Many names are similar.) File your complaint well before the statute expires.  If you later discover that you misidentified the defendant, you should be able to file an amended complaint.

Omitting a Defendant
Even if you believe that you conducted a thorough pre-filing investigation of your client’s claim, it is still possible to miss a defendant.  Here is an example:  Your client is crossing the street and is struck by a car in the cross walk.  In working up your client’s claim, you instruct your investigator to interview the driver who is not represented.  Based on the statement taken by your investigator, the case appears straightforward:  pedestrian versus driver.  You file suit, naming the driver.  In the course of depositions, after the statute of limitations has run, you discover the driver was performing a work-related errand for her employer at the time of the collision.  You failed to name the employer as an additional defendant.  There are several lessons to learn from this scenario.  One of the most important is to file early!  If you learn of a second defendant before the statute runs, file an amended complaint.  Also take the time to review scenarios like this with your investigator and be sure he or she has adequate direction from you on how to conduct interviews.

Suing a Defendant who is Deceased
Failure to discover that the defendant passed away does not toll the statute of limitations.  Conduct a records search prior to filing.  Use resources like the
Oregon Judicial Information Network (OJIN) or Accurint to check court and public records.  If a probate estate has been established, name the estate as the defendant and serve the Personal Representative.

Not Knowing the Law
Claims involving minors often trip up practitioners.  Many believe that minority automatically tolls all statutes and tort claim filings until the minor reaches the age of 18.  This is not the case.  Do your research!  Use the
PLF’s Oregon Statutory Time Limitations handbook as a resource to verify the applicable deadline.  Every Oregon lawyer received a copy of this handbook in 2010.  A PDF of the book is available for download on the PLF Web site.

Missing the Statute of Limitations
The first defense in avoiding a blown statute is to know the law.  As suggested above, use the
PLF’s Oregon Statutory Time Limitations handbook as a resource.  Even if you think you know the statute of limitations, check again.  The second defense is to establish reliable calendaring and file tickling systems that remind you of upcoming deadlines and prompt you to move cases forward.  Consult the PLF’s docketing and calendaring practice aids available online or download and review our book, A Guide to Setting Up and Running Your Law Office, also available online.  Third, always file well in advance of the statute.  Am I beginning to sound like a broken record?  Filing early allows time to recover from the mistakes described above.

Failing to Timely Complete Service
Put the summons and complaint in the hands of your process server on the day you file your complaint or as soon thereafter as possible.  Create a reminder or task to follow-up with your process server 10 days later.  If the defendant is avoiding service or if your server is having difficulty locating the defendant, you need to know early on so you can pursue alternate service methods.  If the defendant is not personally served, be sure you comply with any additional steps that must be taken.  For example, if substituted or office service is obtained, follow-up service by first class mail is required.  Lastly, remember that ALL service steps, including mailings, must be completed within Oregon’s 60 day window for service of process.

Other Resources for Personal Injury Practitioners
The PLF offers 19 litigation/personal injury forms on our Web site, including a civil litigation checklist, service of process checklist, common civil litigation time limitations, and a settlement/judgment disbursal checklist.  We also have many articles dedicated to helping PI practitioners avoid potential malpractice.  An archive of PLF In Brief articles dating back to the year 2000 is available on the PLF Web site.  Additionally, in May 2013 we held Malpractice Traps for Lawyers Handling Personal Injury Cases.  This CLE and the accompanying handout are available to order on the PLF Web site.

Call the PLF for Help 1-800-452-1639
If any of the above happens to you, or if you are concerned for any reason that you may have committed malpractice, call our office.  Ask to speak to one of the claims attorneys on call. 

If you would like assistance with setting up a reliable calendaring or file tickling system, ask to speak to a PLF practice management advisor. 

All PLF services are confidential.

All Rights Reserved – Beverly Michaelis [2013]

Learning the Ropes 2013

Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Domestic Relations or Criminal Law
  • Tort Litigation or Estate Planning
  • Civil Motion Practice or Bankruptcy
  • Creating a Firm or Joining a Firm

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • Alternative Dispute Resolution
  • The Ethics of Practice Management
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Negotiation Tips, Tricks, Traps, and Tools
  • Courtroom Do’s and Don’ts
  • Employment Law and Conscientious Communication
  • Bridging the Cultural Gap

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center November 6-8, 2013.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2013 Beverly Michaelis

Lawyers: What You Don’t Know About HIPAA Could Hurt You

Do you receive, use, store, or transmit personal health information (PHI) on behalf of covered entities subject to HIPAA?  If so, you are a “business associate.”

As a business associate, lawyers must implement privacy and security programs to protect against improper use or disclosure of client health information. They are also obliged to ensure that their subcontractors follow HIPAA rules.

Practice Areas Affected by HIPAA Regulations

Lawyers who provide services in the following areas are business associates subject to HIPAA:

  • Advice to a hospital/provider
  • Insurance Defense
  • HIPAA breach notification/response
  • Health plan fraud/abuse investigations
  • Provider payment disputes

The following does NOT make a lawyer a business associate for HIPAA purposes:

  • Representing an individual plaintiff in a personal injury, workers comp, social security, or medical malpractice case
  • In-house counsel (generally)
  • Drafting a business associate agreement for a covered entity
  • Drafting notices of privacy practices for a covered entity

However, you may possibly become a subcontractor of a business associate (and subject to HIPAA) IF you represent clients who have access to PHI because they provide services to a “covered entity” (health plan, health care provider, health care clearinghouse). Here is an example: You represent a software developer. The scope of your services is limited to entity formation and answering questions about intellectual property. The software developer writes software for health care providers. In order to write the software, the developer is given access to PHI stored on its client’s server. The software developer is a business associate for HIPAA purposes. You are a subcontractor of a business associate (your client) and therefore subject to HIPAA.

For more information on how HIPAA may apply to your law firm, see Kelly T. Hagan, “Business Associate, Esq.: HIPAA’s New Normal,” In Brief (September 2013) and
Kelly T. Hagan, “The HIPAA Compliance Process,” In Brief (May 2014), available on the PLF Web site, www.osbplf.org.

In his 2013 article, Hagan recommended lawyers subject to HIPAA take the following steps:

  1. Identify Privacy and Security Officials. This is not only required by rule, it places responsibility with identified persons. So long as everyone is responsible, no one is.
  2. Document a Risk Analysis. Again, this is required, not simply a good idea. The firm may wish to take this on, or may look to compliance professionals for assistance.
  3. Focus on Mobile Devices. The OCR hates PDAs. Data breaches resulting from stolen or misplaced laptops, iPhones, or Blackberries with PHI on them or accessible through them are a recurring breach scenario.
  4. Compile Existing Policies and Procedures. We all have policies and procedures for keeping files safe and secure. You may be surprised at how far along you already are. You won’t know what is left to be done until you have all of your explicit materials in one place and can compare them to your legal obligations.

The Multnomah Bar Association presented a CLE on October 17, 2013 entitled HIPAA Omnibus Rule Compliance Checklist – For Law Firms and Other Entities that Fall Within the Definition of a Business Associate.  This program was recorded and is available on the MBA Web site.