Suing Your Lawyer: Legal Malpractice Claims
The issue of 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. Similarly, if a personal injury lawyer errs when handling a personal injury case, the client should consider the possibility of suing the lawyer for legal malpractice. Personal injury litigation carries high potential for legal malpractice claims. The malpractice premium your lawyer pays to insurance carriers may reflect this fact. One reason is that people who sue for personal injuries are often particularly litigious. Such people may be looking for reasons to sue their own lawyers.
The most common mistake in personal injury litigation that leads to the malpractice claim is a blown statute of limitations. (See page 134 for a listing of the statutes of limitations for negligence cases.) If an attorney does not file the lawsuit by the statute of limitations deadline, there is a very good chance that he or she could be sued for malpractice.
Missing a statute of limitations date is objectively provable. Whether an error occurred is not a matter of opinion. However, other errors may be more subjective and therefore harder to prove.
Perhaps your lawyer failed to present evidence of lost earning capacity. If you suffered a severe injury and can no longer work in your chosen field, your lawyer may have needed to hire vocational or economic experts to fully prove your losses. Failure to do so may be malpractice.
Perhaps your lawyer failed to collect all the admissable medical records or failed to take the testimony of one of your key doctors. If this omission was the result of carelessness and it adversely affected the outcome of your case, your lawyer probably malpracticed.
Pay close attention to the rulings of the trial judge during your case. If the judge excludes an important piece of evidence or prevents an important witness from testifying, find out why. If the judge so ruled because your lawyer failed to take an important procedural step, that may be malpractice. You are entitled to an explanation. If the explanation does not satisfy you, you may need to consult a malpractice lawyer.
Most mistakes that a personal injury attorney makes are subjective. While you may feel that your lawyer should have handled your trial differently, in most cases it may come down to a matter of trial strategy. For example, your lawyer may have failed to ask a particular question of you or an adverse witness at trial, or he or she may have failed to call a particular witness to testify at all.
You may feel that this is a malpractice. Consider, however, that the lawyer may have had a very good strategic reason to avoid asking the question or bringing the witness to court. Perhaps asking the question carried risks the lawyer did not wish to take. Or perhaps the witness, once brought to court, may have hurt your case in other areas with his or her testimony. Your lawyer may well have been justified in how he or she presented your case.
It may be difficult to prove malpractice in this kind of situation. Unless you can prove that it was more likely that the result of your case would have substantially changed had the lawyer acted as you now claim he or she should have acted, it will be hard to prove that he or she committed malpractice. Clearly, 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, you would have won the underlying case.
Example: Mr. Smith rearends Mr. Jones’ automobile and Mr. Smith retains a lawyer to sue Mr. Jones. If this lawyer files suit against Mr. Jones after the running of the statute of limitations deadline, Mr. Smith will probably not be able 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 probably not meritorious. Mr. Smith could not have collected from Mr. Jones’ insurer. This will be the first line of defense presented by the lawyer whom the malpractice insurer assigns to defend Mr. Smith’s original lawyer.
If, however, it was Mr. Jones who rearended Mr. Smith, Mr. Smith’s lawyer will very much regret having failed to sue on time. It should be easy to prove both that this lawyer committed malpractice and that, had he sued on time, Mr. Smith would have won his case. The legal malpractice insurer might very well pay such a case without much of a battle.
Legal malpractice litigation is a specialty unto itself. There are lawyers who do nothing but sue other lawyers. (You can imagine how popular they must be at bar association conventions and parties.) It is essential that the malpractice lawyer you retain to sue your first lawyer understands fully both the law of legal malpractice itself and the law involved in the underlying lawsuit. Thus, 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 a colleague by suing him or her. The lawyer may feel that what goes around comes around. Some day the lawyer being sued will be in a position to get back at the lawyer retained to sue him or her.
Similarly, you may realize in pursuing medical malpractice litigation, that it is very hard to find a doctor willing to testify that another doctor committed medical malpractice. Again, the doctor may worry the shoe some day will be on the other foot. Or, the doctor may simply feel a sense of loyalty to a colleague which deters him or her from testifying.
Most lawyers carry legal malpractice coverage. Assuming the insurance company is itself financially solvent, collecting on a settlement or judgment is not a problem. If, however, you find that you need to sue a lawyer who is not covered, you will be left with the unhappy task of having to collect from the lawyer’s personal assets. Collecting from the personal assets of anyone you sue can be a serious problem. See page 176 for a discussion of collecting from an uninsured defendant.
Unless the mistake is fairly clear cut, like a blown statute of limitations and the underlying case is fairly significant in size, it may be difficult to find a lawyer who will handle a malpractice case with a contingent fee agreement. The complexity of these cases, the case-within-a-case aspect, the possibility that the malpractice insurer will disclaim coverage and the unpleasantness of a lawyer suing a colleague-all contribute to this difficulty.
If, however, you are able to pay a retainer based on an hourly fee, you will have no trouble at all finding a lawyer. In fact, in virtually every area of law, if you have the ability to pay a retainer, you will be able to find a lawyer to work with you. The question will always be whether it makes financial sense to do so.
Some people lose sight of what makes fiscal sense when they have been wronged. They may be willing to pay dearly to make their previous lawyer suffer, even if the amount they can conceivably recover will not cover their counsel fees. That is this person’s right, and it will not be that hard to find a lawyer to assist such a crusade.
The lawyer should, however, make the financial risks clear at the outset. If the client wishes to proceed after this warning, he or she can do so. Most people will realize the ultimate futility of such a course of litigation, lick their wounds, and move on.
As you can imagine, even 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 that 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.
On the other hand, the lawyer may simply choose to represent him- or her- self, thereby avoiding putting the insurer on notice. If he or she does this, you may be in for a very long, hard fight. As with suing a doctor for malpractice, lawyers take malpractice allegations very personally. Since the lawyer will have to pay any settlement or verdict out of his or her own pocket, he or she may call on his or her legal expertise to put up a long and difficult legal battle.