When Your Lawyer is to Blame, Then What?
“To err is human,” begins a familiar saying. No one is infallible. And because lawyers are human – no snickering, please! – a certain number of mistakes in the course of representing clients are inevitable.
But what recourse does a client have, if a lawyer’s mistake proves costly?
In theory, the client should be able to depend on an ethical lawyer’s owning up to his or her errors and making amends. When substantial harm has resulted, nearly all lawyers will have “errors and omissions” (malpractice) insurance to assure that compensation for valid claims can be collected, as well.
In reality, though, a client’s ability to gain compensation for a lawyer’s mistake is severely limited. First, the lawyer’s insurance company will not simply open its checkbook to make amends. Typically, it will deny the initial claim, forcing the client to hire another lawyer just to pursue the claim in litigation.
Even in what seem like clear-cut cases, litigation is a difficult path. For any type of civil lawsuit, a plaintiff must prove grounds for winning (“liability”) as well as the amount of its losses in need of reimbursement (“damages”). Because claims questioning a lawyer’s exercise of strategic judgment have such a low rate of success, most such claims never get out of the gate, leaving only those cases where the lawyer made an obvious mistake to go forward. For example, if a lawyer handling a case fails to file suit on time and the case is lost due to the statute of limitations, that would be a clear case for liability. But cases built on critiques of strategic decisions made in preparing or conducting trials are seldom even brought.
For the few cases that clear the liability hurdle, the path becomes even more thorny as attention turns to the question of damages. The client and his new lawyer will be required to prove that the defendant lawyer’s error caused a financial loss. This will in turn require the client to prove that the original case could have been won, and indeed should have been won if not for the defendant lawyer’s mistake. The client has to prove not only the liability of the lawyer, but also the liability of the defendant in the original case – plus the amount of damages in the original case as well. A client is not permitted to argue that a case had “settlement value;” he must instead try the “case within the case” if he hopes to reach the finish line successfully.
The chief lesson learned from such an experience is not that recouping a lawyer-caused loss by making a claim is often prohibitively difficult – even though that is definitely true. Rather, it is that since recouping is typically so very difficult, the need for clients to choose their lawyers carefully at the outset is paramount.
How do you determine whether a particular lawyer is worthy of your trust in handling your important case? Ask yourself:
- How did I find this lawyer? Was it through a referral from a trusted friend, or someone else in a position to know of the lawyer’s capabilities, ethics and reputation? Or did I call this particular lawyer in response to the lawyer’s own representations in advertising?
- What objective indications are there of this lawyer’s levels of skill and attentiveness? Has he earned high marks from professional, survey-based ratings services like Martindale-Hubbell? Or did the client choose based on reviews from Yelp, Avvo, or other unreliable internet services? Note that most internet rating services are woefully subject to manipulation, with businesses posing as customers in order to pad their own ratings and post glowing comments.
- When meeting the lawyer for the first time, did he come to the meeting prepared to learn about your case, and willing to devote sufficient time to explain to you whether bringing your case was advisable? Did he explain how the case would likely proceed, and what expenses that would likely entail? Or did he merely reflect back to you what you wanted to hear, so as to ensure that he got your business? Oftentimes, we are put off by those who tell us bad news, and we run to those who make big promises. But no client should hire a lawyer to file any law suit without knowing the full range of possible outcomes, as well as the lawyer’s best assessment of which outcome (at least initially) appears most likely.
- Did I choose this lawyer primarily based on price? While clients should always stay on top of anticipated litigation expenses, markedly low quotes can be a red flag. Some lawyers understate the likely costs of litigation in order to encourage the client to hire them and begin the case. In other instances, unusually low hourly rates or other “bargain basement” billing arrangements may be a tipoff that the lawyer is not in terribly high demand.
At Marrs & Henry, we have had a few occasions to pursue meritorious legal malpractice claims to successful conclusions. But as always, it is better to prevent litigation entirely, than to have a winnable case. When we meet a client for the first time, we hope to meet all of the tests suggested above. But even if a client chooses another firm, we hope he will do his homework before finding himself in a regrettable predicament later on.