Legal malpractice is relevant to every type of legal case. If a contract lawyer makes an important mistake in drafting a contract, the client can sue for legal malpractice. If a corporate lawyer negligently fails to file important papers, the corporation may sue for legal malpractice. Similarly, if a personal injury lawyer errs, the client should consider suing the lawyer for legal malpractice. Personal injury litigation generates a relatively large number of legal malpractice claims. The premiums PI lawyers pay for malpractice insurance reflect this. One reason is that people who sue for personal injuries may be litigious by nature. Such people may be looking for reasons to sue their own lawyers.
A common mistake in personal injury litigation that leads to a malpractice claim is a missed statute of limitations deadline. See Chapter 9 for a listing of the statutes of limitations for negligence cases. If an attorney does not file the lawsuit by the statute of limitations cut-off date, there is a very good chance the attorney will be sued for malpractice. Missing a statute of limitations date is generally objectively provable; whether the deadline was missed is not a matter of opinion. In contrast, with medical malpractice claims, the statute of limitations may begin to run only when the patient knew or should have known of the malpractice. In those cases, a large degree of subjectivity may be involved.
Perhaps a lawyer failed to present evidence of lost earning capacity. If a plaintiff suffered a severe injury and can no longer work in his or her chosen field, the lawyer should have hired vocational and/or economic experts to fully prove the losses. Failure to do so may be malpractice. Maybe the lawyer failed to collect all of the admissible medical records or failed to take the testimony of a key doctor. If this omission was the result of carelessness and adversely affected the outcome of the case, this is malpractice.
Clients should pay close attention to the rulings of the judge during trial. If the judge excludes an important piece of evidence or prevents an important witness from testifying, the client will want to know why. If the judge’s ruling was based on the lawyer failing to take an important procedural step, that may be malpractice.
Some “errors” may be more subjective and therefore harder to prove. Many choices that a personal injury attorney makes are not malpractice, even if the outcome is unsuccessful. Although the client may feel that the lawyer should have handled the trial differently, it may come down to trial strategy. For example, the lawyer may have failed to ask a particular question at trial, or may have failed to call a particular witness to testify at all. The client may feel this is malpractice. However, consider that the lawyer may have strategically avoided asking the question or bringing the witness to court. Perhaps asking the question carried risks the lawyer did not wish to take. The witness may have hurt the case in other areas with his or her testimony. The lawyer may have been justified in how the case was presented.
In this kind of situation, it may be difficult to prove malpractice. The client will need to prove that it is likely that the result of the case would have substantially changed had the lawyer acted as the client now claims he should have acted. Legal malpractice claims can be complex and difficult.
Malpractice litigation is sometimes referred to as a case within a case. This is because to successfully prove a legal malpractice case, you have to show not only that the lawyer committed malpractice, but also that, had the lawyer not committed malpractice, the results in the underlying case would have been better.
Mr. Smith rear-ends Mr. Jones’ automobile. Mr. Smith retains a lawyer to sue Mr. Jones. If this lawyer files suit against Mr. Jones after the statute of limitations deadline, Mr. Smith will be unable to collect from either Mr. Jones’ auto insurance company or from the lawyer’s malpractice insurer.
Even if the lawyer had filed suit on time, the underlying lawsuit against Mr. Jones was not meritorious. Mr. Smith could not have collected from Mr. Jones’ insurer since it was Mr. Smith who rear- ended Mr. Jones. This is the first line of defense presented by the lawyer whom the malpractice insurer assigns to defend Mr. Smith’s original lawyer.
However, if Mr. Jones rear-ended Mr. Smith, Mr. Smith’s lawyer will regret failing to sue on time. It should be easy to prove that this lawyer committed malpractice and that, had he sued on time, Mr. Smith would have won the case. The legal malpractice insurer might pay this type of case without much of a battle.
Legal malpractice litigation is a specialty. It is essential that the malpractice lawyer understands both the law of legal malpractice and the law involved in the underlying lawsuit. Therefore, Mr. Smith’s malpractice lawyer should understand how to handle both malpractice litigation and personal injury litigation.
Most lawyers prefer not to sue other lawyers. Aside from the difficulty of having to prove both the legal malpractice and the merit of the underlying case, many lawyers simply do not wish to alienate colleagues by suing them. The lawyer may feel that what goes around comes around. The lawyer being sued may be in a position later to get revenge against the suing lawyer.
Similarly, in pursuing medical malpractice litigation, it can be difficult to find a local doctor willing to testify that another doctor committed medical malpractice. Again, the doctor may worry some day the “shoe will be on the other foot.” Or the doctor may simply feel a sense of loyalty to a colleague.
Most lawyers carry legal malpractice coverage. Assuming the insurance company is financially solvent, collecting on a settlement or judgment is not a problem. If, however, you sue a lawyer who is not covered, you will be left with the unhappy task of trying to collect from the lawyer’s personal assets. Collecting from the personal assets of anyone you sue can be a serious challenge. It is even harder when suing a lawyer, as lawyers have the necessary experience to fight in court. See the end of Chapter 11 for a discussion of collecting from an uninsured defendant.
Another problem with these cases is that insurers sometimes disclaim coverage. That means they will not cover the claim. They may take the position that there is language in the policy that permits this. Or there may be a gap in the coverage because the lawyer switched from one company to another. If this happens, check the policy to make sure the insurer’s position is sound, as it may not be. If you think the insurer’s disclaimer is wrong, you can file a declaratory judgment lawsuit. These suits seek a declaration from the court that the insurer must cover the claim. The court will examine the policy language and the relevant law and apply them to the dispute. If the policy language is ambiguous, the court will resolve the ambiguity against the insurer. Remember: Even if the insurer says it does not have to cover the claim, a court may see things differently.
Unless the alleged legal malpractice is fairly clear cut, like a blown statute of limitations, and the underlying case is fairly significant in size, you may not wish to pursue a malpractice case with a contingent fee agreement. This is because of the complexity of these cases, the case-within-a-case aspect, the possibility that the malpractice insurer will disclaim coverage, and the unpleasantness of suing a colleague.
Clients will have no trouble finding a lawyer if they are able to afford a retainer based on an hourly fee. In fact, in virtually every area of law, a client who can pay a retainer will be able to find a lawyer. The question is whether it makes financial sense. Some people lose sight of what makes fiscal sense when they have been wronged. They may be willing to pay dearly to make the malpracticing lawyer suffer, even if the amount they conceivably can recover will not cover their counsel fees. That is a person’s right, and it will not be difficult to find a lawyer to assist in this type of crusade. However, at the outset, the lawyer should make the financial risks clear, in person and in writing. A client who wishes to proceed after this warning can do so. Most people will realize the ultimate futility of such a course of litigation, lick their wounds, and move on. That is certainly better than pursuing the litigation and ending up with a client who is now unhappy both with the first lawyer and with you.
The threat of a malpractice suit is a distressing matter for any professional. Many lawyers hesitate before advising their malpractice carrier of a claim. They may fear their insurance premium will dramatically increase. If the dispute is over a relatively small amount of money, the lawyer may be willing to compensate the client out of his or her own pocket, rather than putting the insurer on notice of the claim.
The lawyer may simply choose to represent him- or herself, thereby avoiding putting the insurer on notice. As with suing a doctor for malpractice, lawyers take malpractice allegations very personally. A lawyer who will have to pay any settlement out of his or her own pocket may fight the claim with great intensity. Attorneys are trained to do so. Keep that in mind when a client approaches you with a legal malpractice claim. Also, remember the axiom: She who represents herself has a fool for a lawyer. This applies to lawyers, too.
In the unhappy event of committing malpractice, you should place your carrier on notice as soon as possible. If you even suspect that a claim will be brought against you, put the carrier on notice. If you don’t, you risking prejudicing the insurer’s ability to defend you. Since every insurance policy requires the insured to report claims promptly and provide full cooperation to the insurer, if you fail to do so, your risk losing your coverage. Unless you are prepared to pay both the cost of your defense and any settlement or judgment, you should cooperate fully with your carrier. You have been paying those premiums every year for exactly this situation.
I have had to put my carrier on notice of a potential claim against me twice in my career. In both cases, I was happy I did. I got help from a lawyer my insurance company recommended. And fortunately, I prevailed in both cases. My premium did not go up. Simply reporting a claim should not cause your premium to rise. Because of the deductible in my policy, I had to pay for the lawyer’s time. But it was worth it and I was able to sleep at night.