Papering your file (or PDFing an electronic file) is an important, if underappreciated, method to protect both you and your clients. Regular memos to a file will help cut down time necessary to analyze a new development in your case, ensure a colleague can take over a file if something happens to you, and could protect you against a malpractice claim in the future.
Every case is different, but in almost every case there are periods of intense activity and periods of inactivity. Having a running memo that identifies keys facts, memorializes important client discussions, and outlines the case’s procedural history is an efficient way to get back up to speed on the case after one of the inevitable inactive periods. A running memo, for instance, refreshes your recollection on those great ideas you had for deposition questions while you were drafting your written discovery. Or, it just reminds you of the nuances of the case that start to wane over a few weeks of inactivity.
Additionally, papering your file will enable a colleague to pick up the case if something happens to you. We are all subject to illness, emergencies, life altering events, or meteor or bus strikes. If something terrible happens to you, it’s good to have your thoughts and understanding of the case ready for a colleague to review if they have to take over. Though you may not be able to prevent the unfortunate events in your life, you can make sure your client doesn’t suffer when they happen.
On this point, it is also a good idea for supervising attorneys to instill good papering habits in the attorneys who work on their files. You never know when a junior attorney will be poached by a rival firm, quit to write that novel, or when you will you to no longer require that attorney’s services. You don’t want to be in a position of having to reinvent the case when the attorney who has been doing the bulk of the leg work leaves. Neither you nor your client will appreciate the time and expense that will be necessary to get you back to where you were before the departure.
Finally, though we are all perfect, sometimes clients disagree. Years may pass and then one day you get hit with a malpractice case. Though a year or two may not be long in life, in the practice of law it can be an eternity. Having a running memo waiting for you in the file will allow you to remember the case down to nuances and help your attorney defend the malpractice action.
It is also a good idea to give regular updates to your client and put this correspondence in the file—especially when you give a client a recommendation. Put together a letter, memo, or email that sets out your advice, reasoning, and potential consequences or accepting or rejecting the advice. This does not have to be long. But it has the benefit of (1) keeping your client informed; and (2) possibly being used as a defense later on. Too many malpractice claims rest on a plaintiff saying his lawyer never told him that [insert terrible thing] could happen and the lawyer’s defense is she did, in fact, tell her client orally that [said terrible thing] could happen. But without something in writing, the malpractice action becomes a he said / she said that is destined for trial or an unnecessary settlement. Avoid this problem by regularly papering your file and providing updates and recommendations in writing to your clients.
It may seem like papering your file will make your practice less, not more, efficient. After all, it does take time and energy to regularly paper your files. But spending a little time and effort now can reap big benefits in the long run.
