This Div is a JS Trigger
Issue 58 | July 2019

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Setting the record straight: The importance of making notes

The importance of making notes of client meetings and conversations goes without saying. They are important not just for lawyers but for all professions who can be sued in negligence. Sometimes a case from another profession lays out the importance.

The Ontario Court of Appeal recently upheld a trial court’s decision dismissing a claim in negligence made against an insurance broker. One issue at trial and on appeal was when the insured advised the broker of the loss. If the insured was believed the broker would have been negligent for not giving notice to the broker within the limitation period. If the broker was believed, the insured gave it notice after the limitation had passed.

The loss occurred near the end of 2008. The insured said that she advised the broker of the loss in a January 2009 telephone conversation with B, a conversation with some other representative in April or May 2009 and again in a January 2010 telephone conversation again with B. B’s file notes indicated the first notice of the loss to her (the broker) was in a September 2011 phone call by the insured to her, which call was outside the limitation period to make a claim. In preferring the evidence of the broker the trial judge stated:

…[the broker’s] file regarding [the insured’s] insurance policies is thoroughly documented with respect to the various times in the past that [the insured] contacted [the broker] about potential loses.  The files confirm that B is a diligent note taker whose practice it is to report all losses to insurers….[B] testified that it is her policy to submit a claim and let the insurer determine the issue of coverage. In my view, if [the insured] had previously informed [the broker] of her damages there would be some notes or records confirming these conversations, but there were none.

The claim against the broker was dismissed.

LIANS offers the following sample forms on our site (all can be highlighted, copied, pasted and edited). There is no one way to document your file, so feel free to use one of these forms or modify to create your own - just be sure to document your dates!

File Notes - version one

File Notes - version two

Meeting Notes

Telephone/Personal Exchange

Stamp templates to document your file