Sunday, 27 January 2013

Improving conveyancing risk through simplest of methods: the checklist

Can any conveyancer with more than 10 years experience challenge the notion that over the last decade conveyancing has become increasingly complex with more requirements being heaped onto the poor conveyancing lawyer? Examples of additional considerations including AML regulations, or new searches to be aware of such as chancel, environmental or flood. Add to the mix that there are now 150 plus lenders all with different requirements who make changes with increasing regularity. It’s no small wonder that over 50% of claims against solicitors are in the field of property law.

Underwriters acknowledge that the vast majority of claims against conveyancing lawyers are down to failures of processes or systems rather than due to problems with legal advice. Some would estimated that 90% are not not down to legal advice.

Having spoken at length to insurers about their data - the underlying causes of claims - seems to have changed little over several years.

Overwhelming torrents of details and demands are by no means unique to conveyancing lawyers. Many jobs involve a combination of process, specialist skills and the exercise of judgement. Dr Gawande in his book The Checklist Manifesto explains how he discovered the power of the checklist in his research into aviation, and he extends his inquiry to architecture, finance, and yes.....the legal sector.

However, for some lawyers, applying something as a humble as checklists to the execution of legal work feels alien – it seems to undercut professional competence and discretion, the sense that each matter is unique and needs a response which no checklist could accommodate. In the current climate of the apparent threat to the industry by ABSs it also suggests commoditization which may not fit with a firm’s profile. Nevertheless, the most competent solicitors - and the most likely to comply in a world of creeping regulation -  are those lawyers who appreciate the importance of organization and pre-planning through technologically sophisticated checklists.

Gawande makes a distinction between errors of ignorance (mistakes we make because we don’t know enough), and errors of ineptitude (mistakes we made because we don’t make proper use of what we know). Most errors in the field of conveyancing happen in the second of these errors such as missing a second charge or missing a deadline or expiry date. It’s just too easy for an otherwise competent solicitor to miss a step, or forget to ask a key question or, miss a lender requirement. As is the case with pilots, surgeons and the people who build skyscrapers conveyancers need checklists–literally–written (on-line or otherwise) guides that walk them through the key steps in any complex transaction.

Many conveyancng solicitors resist checklists because they want to believe our profession is as much an art as a science. When Gawande surveyed members of the staff at eight hospitals about a checklist developed by his research team that nearly halved the number of surgical deaths, 20 percent said they thought it wasn’t easy to use and did not improve safety. But when asked whether they would want the checklist used if they were having an operation, 93 percent said yes

My main point is simple: no matter how expert you may be, well-designed checklists brings consistency and improves outcomes for everyone, even the experienced lawyer. They provide a kind of cognitive net. They catch mental flaws. The end result – more productive fee-earning time.

I will end on this last thought. Today, insurers in the USA are rewarding doctors for using checklists to treat such conditions as heart failure and pneumonia. Perhaps in the future solicitors UK PI insurers will do the same for conveyancing.

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