Moving the Monkey Reduces the Risk of Errors & Omissions Liability Claims As Well As Law Society Complaints

By: Scott McEachern, legal practitioner coach

Monkeys The phrase, "monkey on your back" is well understood as meaning that a person bears the burden of performing a particular outstanding task under the weight of a deadline, a sense of other urgency, a liability risk, or another concern.  Accordingly, the concept of moving the monkey means to get the monkey off your back so as to reduce this weight.

Shifting Task Burdens

When a task needs completion, and in the life of a legal representative, many tasks are always needing completion, shifting the burden of completion onto others, such as opposing counsel or even your own client, moves the monkey on your back and onto the back of the other person.  For example, when opposing counsel requests a document, the monkey is on your back until you pass the request along to your client.  Once the task is passed onto your client, and you abey the file for proper follow up, the monkey is, at least temporarily off your back and onto the back of your client who then bears the responsibility of providing the required information or document; and accordingly, you effectively moved the monkey.

Of course, moving the monkey onto the back of someone else is only helpful when the monkey is moved to the back of someone outside of your responsibility; and accordingly, moving the monkey to your assistant or law clerk, whose conduct you remain legally and morally responsibility for, makes little difference from an external liability or Law Society complaint risk; and as such, moving the monkey in a meaningful way requires that the task burden be placed onto someone whose responsibility is independently separate from your own.

One of the most common errors and omissions liability issues occurs by way of undue delay rather than an actual mistake.  Undue delays, and liabilities arising from undue delays, often occur due to a failure to move the monkey in a timely fashion.  For example, the legal representative who fails to request certain evidence documents from the client with enough advance notice for the client to obtain and provide the documents may be an error or omission, by undue delay, that falls upon the legal representative.  Of course, if the legal representative did request the documents in a timely manner, and the client failed to perform the task, and despite timely follow up requests from the legal representative, then any liability, such as adverse costs orders or prejudice to the client, is due to the fault of the client and, essentially, the legal representative is protected by having moved the monkey.

Examples:

Some simple examples of administratively moving the monkey include:

  • The issuing of a Request to Clerk for the scheduling of a Trial date and filing with the clerk;
  • The request for disclosure issued to a Prosecutor;
  • The service of a Demand For Particulars upon opposing counsel;
  • The hiring for production of a Expert Report from a forensic accountant; and
  • The sending of a request for instructions on an Offer-to-Settle to a client.

Addressing these tasks, among others, in a diligent manner that moves the monkey onto the backs of others, reduces errors and omissions liability risk as well as Law Society complaint risk while also reducing the stresses carried by legal professionals. 


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