Update: This post was cited several times in a law review article that appeared in the Fordham Law Review, which includes other useful information about hurdles in filing a legal malpractice case. The article may be found online here.
Legal malpractice plaintiffs should understand what they are getting into before they make a final decision to actually litigate a dispute with an attorney. I do this in part with my clients by explaining the “Big Litigation Picture”, which includes five phases of legal malpractice litigation, so they can see the whole forest, not just the trees.
Some people who contact me for legal representation are in the middle of a significant dispute with their current attorney and want to get advice quickly to resolve the matter or minimize damages as it is happening. I then usually work behind the scenes, sometimes to help resolve the problem, and other times to help create a record to document the problem for later litigation.
Unfortunately, most clients do not realize there is a problem with how they have been represented (or the extent of the problem) until it is too late to correct the mistake, that is, after the attorney has completed the work (or failed to complete it). For example, you may have an attorney who gave you poor advice regarding settling a case, or improperly handled a business or personal transaction. Most often, it is not until the smoke clears that a client begins to realize that a former attorney may be at fault for an unsatisfactory outcome.
By that time, the damage usually has been done and the question will be: what are your options to recover damages or legal fees from the attorney or law firm that mishandled my legal matter? (Of course, if it is possible for you to undo the damage, even if that means hiring another attorney, that usually would be the first priority.)
Whenever you realize that there is a problem, there will be various options, such negotiations, mediation, or arbitration. These and other options have their pluses and minuses, depending on your circumstances. But, more than likely, at some point you will need to at least consider the option of suing your former attorney (and sometimes, even your current attorney) for legal malpractice, breach of fiduciary duty, breach of contract, or other potential claims.
In considering whether to bring suit against an attorney or law firm as a result of poor or incompetent representation, excessive or fraudulent legal fees, conflicts of interest, or other ethical issues, keep in mind that no matter how good a case you believe you have, legal malpractice cases are usually defended by deep pocket insurance companies or attorneys representing themselves.
Hopefully, any litigation you engage in will end either in settlement or judgment at trial, and the judgment is collectible. But before you ever get involved in legal malpractice litigation you should know what you may be in store for. In other words, you need to not only know your end-goal, but the obstacles, detours, pitfalls, and dangers that you may encounter on the way: what I refer to as the “Big Litigation Picture”.
This is particularly important in legal malpractice cases, because they generally tend to be more complex than most litigation. One of the reasons for this is that most legal malpractice cases require expert testimony. Another reason is that you will not only have to prove that the attorney fell below the standard of care, but that the attorney’s failures actually damaged you.
Usually this means that you have to prove that whatever the issue the attorney represented you in, whether it was a business transaction, litigation, a divorce, administering an estate, the purchase of a home, defending you in a lawsuit, etc., would have turned out more favorably for you if the attorney had not made the mistake. This is sometimes referred to as the “case within a case” or “suit within the suit.” That issue is worthy of a separate blog post, but, for now, it just means that legal malpractice litigation usually is complex.
So, what are the five overall phases of litigation?
Phase 1 is where an attorney evaluates your case, usually by reviewing documents, getting all the facts, sometimes speaking with witnesses, and researching the applicable law. At the end of this phase, you should get a written opinion from the attorney outlining his or her assessment of the case, and your options. Hopefully the attorney will give you a no-holds-barred opinion about the pluses and minuses of your case so you can decide whether it makes sense to go any further.
Phase 2 is something that some attorneys may skip over or include as part of litigation, but I generally recommend it to my clients as a separate phase. Basically, this is the time when a client not only decides what to do, it will also include the initial preparation for whichever step the client chooses. If advisable under the circumstances, it may include contacting the attorney with whom you have dispute, either to make certain demands, or potentially, to negotiate before litigation begins.
Phase 3: This marks the great divide. Once you enter into this phase, you have decided to pursue a formal process of conflict resolution. This phase involve the formal filing of the appropriate action. The case will resolve itself only by settlement, judgment (or dismissal of your claims by a judge before a trial). Phase 3 is usually the most involved phase of all, including everything and anything to do with litigation such as document production and discovery, depositions, retention of experts, pre and post trial motions, and, ultimately, if no settlement is reached or the case is not resolved sooner, an actual trial.
The relatively good news is that approximately 98% of cases are resolved prior to trial. Some of the cases are dismissed, some of the cases are resolved on summary judgment, and a majority of cases settle. The not so good news is that since there are about 20 million civil cases filed every year, that means that there are still hundreds of thousands of civil trials every year. That also means that your case should be handled from the very beginning with the assumption that it is going to trial. It will soon become obvious to the other side how prepared your attorney is and this will impact their willingness to settle.
Phase 4: The worse news is even if you win at trial, the other side can appeal. This is not a theoretical possibility, but probably one of the major reasons why most cases that survive a motion to dismiss or a motion for summary judgment end up settling. According to one study, about 15% of state civil trials are appealed. Most attorneys will not include an appeal as part of their retainer agreement, which means you should find out from your attorney upfront what will happen if there is an appeal.
Phase 5 really includes two stages. If you won at trial and the other side does not appeal, congratulations except for one thing: you still have to collect. Even if the defendant had legal malpractice insurance, the legal malpractice policy may not cover all of the causes of action that were brought, or its policy limits may not cover the damages awarded. If the defendant does not have enough money to pay, you may have to bring a collection action against the defendant. Collection actions are also generally not included as part of a retainer agreement to litigate.
The second alternative part of phase 5 is dealing with the outcome of an appeal. While there are many different issues that may be raised on appeal, one possible outcome of an appeal is that the appellate court will order that a new trial take place. If you were on the winning end of the trial, you will now have to go through the whole process again, and there is no guarantee the outcome will end up in victory the second time around. And it also means there could be another appeal after a second trial, although that is less likely. Though the chances of a decision being reversed are relatively small (I have seen estimates of somewhere between 9% and 30%), it is a very real chance that needs to be considered by both sides.
There is much more to litigation than what I write above. Despite the twists and turns of litigation, there are still millions of civil cases of all types filed every year. Legal malpractice defendants are, by definition, attorneys, so they will likely have a much better idea of what to expect than a legal malpractice plaintiff. I believe legal malpractice plaintiffs should be have at least a general idea of the entire litigation process so they know what they are getting into before actually getting into it.
Author: Howard Altschuler
The law review article that cited my blog post is: Susan Saab Fortney, A Tort in Search of a Remedy,: Prying Open the Courthouse Doors for Legal Malpractice Victims, 85 Fordham L. Rev. 2033 (N.5), 2038 (n.35), 2040 (n.45) (2017).
(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2013 by Howard Altschuler, All Rights Reserved