For as long as the concept of E&O has been around, one of the key phrases has been “Document, Document, Document”. This is so for good reason. The degree of documentation is one of the main drivers that can either prevent an E&O claim from occurring or if it does occur, documentation can heavily determine the direction of that E&O claim.
However, in reality, “document, document, document” is just the tip of the issue. For documentation to have the desired effect, the documentation needs to be detailed; who was involved in the discussion, when and where did the discussion take place and what was the resolution or next steps to be taken. Documentation stating “spoke with insured about their auto coverage” does not really tell much of the story.
Another key element of documentation is that it is done promptly. No doubt, there are some agency staff that before they go home for the night, they go into each of the specific client files and enter the documentation of the conversations that occurred that day. This is not good enough.
Let’s presume that the discussion with the client was done at 9:30 in the morning. Over the course of the day, how many clients will you speak with? Probably more than just this one. Let’s presume that you spoke with 10 clients that day. It is now 4:30 and you are getting ready to call it a day but before you do, you proceed with documenting all of the discussions you had that day. While you may have a very good memory, there is the definite likelihood that 1) you are not going to remember all of the issues discussed in the 9:30 call or 2) you may confuse the discussion with one client with the conversation with another client.
It is important to remember that when you enter the documentation in the system, the system will automatically indicate exactly when that documentation was entered. How will it look if you enter the 9:30 client discussion at 4:30 in the afternoon? If a problem develops resulting in an E&O matter, you can count on the opposing legal counsel drilling you on the delay and the potential lack of thoroughness of the documentation.
What is the ideal scenario? Enter the documentation in the system immediately upon the conclusion of the conversation. If this is not possible, the documentation should be handled no more than an hour after the discussion took place. Management needs to work with the staff to ensure that this happens.
Bottom line – for documentation to have ideal value, it needs to be handled promptly and promptly is measured in minutes, not hours.