• November 22, 2011

A few weeks ago, Minnesota Litigator queried as to why medical malpractice claims are a widely discussed form of civil litigation but legal malpractice claims are relatively uncommon and inconspicuous but shied away from offering an explanation, which may have been wise self-restraint.  Now that is cast aside.

The most obvious explanation for medical malpractice claims far outnumbering legal malpractice claims is that there are many more medical procedures performed every day across the country than there are “legal procedures.”  Most people never “go to the lawyer” for their entire lives but everyone goes to the doctor.  The “opportunities” for malpractice for physicians is simply far more numerous than it is for lawyers.

Another explanation may be that legal malpractice can be much harder to catch.  Botched surgery or missed diagnoses often stand out (but not always, of course).

Another explanation is that the potential damages from medical malpractice can more often be catastrophic.  Legal malpractice, after all, rarely results in death or disfigurement.

Also legal malpractice actions can be very complex.

Accidentally giving away the Los Angeles Dodgers in a divorce agreement or circulating multiple versions of a settlement agreement with inconsistent terms (which is what happened in the notorious Dodgers-related malpractice action) is a relatively fairly straight-forward case of legal malpractice.  Missing a bright-line deadline like a statute of limitation is also cut-and-dried kind of legal malpractice.

On the other hand, suffering undesired outcomes in litigation is obviously cannot be per se legal malpractice.  Otherwise, every unsuccessful litigation would constitute professional malpractice by the losing side which is unfathomable and untenable.

So the question is when do litigation strategies and decisions that lead to bad results rise to the level of legal malpractice?

And here, a major hurdle of legal malpractice actions under Minnesota law is so-called “but for” causation:  “but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.”  That is, a legal malpractice plaintiff must establish that the outcome in a case would have been different if the alleged malpractice had not occurred.

But what about a case where, for example, a law firm takes on a terrible case, mischaracterizes it as a very strong case, causes its client to lose millions of dollars in legal fees and then loses the case?  By the “but for” legal standard, astonishingly, one might argue that this would not be professional malpractice.  After all, Clarence Darrow himself could not have won the hypothetical “terrible” case so there is no “but for” causation.  But, of course, in the hypothetical, the client would have been caused damages by the law firm’s substandard legal representation.

And this, finally, brings us to the cynical explanation of the relative infrequency of legal malpractice actions vis-a-vis other kinds of professional malpractice claims.  When the law sits in judgment of lawyers does an unspoken, maybe even unconscious, “There-but-for-the-grace-of-God-go-I” sentiment infuse the legal system with a generous and forgiving amnesty?

The Minnesota Supreme Court’s 2006 Jerry’s Enterprises case represents a loosening of the rather extreme “but for” standard for legal malpractice under Minnesota law.

The issue should not be whether the plaintiff would have been successful in the prosecution or defense of the action but for defendant’s conduct.  Rather, it should be whether the lawyer defendant’s breach of professional standards caused the plaintiff to incur actual damages.  Otherwise, attorneys are insulated from liability for attorney negligence, gross negligence, and even conscious and knowing bad lawyering so long as bad lawyers can argue that their clients “would have lost the case anyway.”

The law is understandably wary of endlessly recursive litigation about litigation and also must recognize that it is unfair to apply 20/20 hindsight to the enormous number of decisions faced by trial lawyers in the heat of battle (multi-dimensional whac-a-mole).  On the other hand, who wants a justice system that is closed when it comes to vindicating injustices perpetrated by those charged to uphold system?

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