Stephen Persons sued Chestnut & Cambronne attorney Dennis Johnson claiming that Johnson committed attorney malpractice in representing Persons in his divorce action.
Persons, represented in the malpractice action by Marshall Tanick and Teresa Ayling of the Hellmuth & Johnson firm, also had the expertise of distinguished Minnesota divorce lawyer, Nancy Berg, backing up Persons’ claim of professional malpractice.
Berg was very critical of Mr. Johnson’s work on Persons’ behalf. “Simple reliance on a number pulled from the air by the client is malpractice,” Ms. Berg opined in regard to how Mr. Johnson allegedly handled valuation of his client’s interest in a business that he and his ex-wife owned together in part. Berg characterized Johnson’s representation as “chaotic and careless” and asserted that “the result would have been different had [Johnson] exercised ordinary skill, care and honesty.”
This expert opinion is not enough to withstand summary judgment and put the question to a jury?
No. Not in this case.
Hennepin County District Court Judge Regina Chu held that Berg’s opinions were “conclusory and speculative,” and the trial court (and Court of Appeals) rejected the opinions of others also retained by Persons as to various aspects of Johnson’s legal representation.
The Court found that part of the conduct that Ms. Berg called legal malpractice fell into the realm of disagreement as to legal strategy. Some may disagree with the strategy “never defend a weak position” — a sort of legal argument triage — but 20/20 hindsight or “armchair quarterbacking” will not win a claim for attorney malpractice. Lawyers and their clients have to make such strategic decisions, hard calls, all the time. We live in a world of uncertainty and calculated, though at the same time, ill-defined, risk.
But Persons’ challenges were perhaps the greatest where they are in most attorney malpractice cases — in proving that “but for” Johnson’s allegedly substandard representation, the client would have obtained a better result.
This is an enormously difficult standard to meet.
Let’s take a hypothetical: you are a criminal defendant and your lawyer literally sleeps through your trial. You’re convicted, sentenced, and incarcerated. When your malpractice lawyer sues Sleepy Head, who you believe is responsible for your unjust incarceration, he defends, saying, “My client would have been convicted anyway.” How is the victim of legal malpractice to prove otherwise?
Even in extreme cases of obvious and complete substandard representation, the legal malpractice plaintiff faces the challenge of coming forward with admissible evidence from an imaginary scenario — the scenario that DID NOT happen, the representation without the alleged faulty conduct. And the evidence will be thrown out if it is deemed “speculative” when, in a sense, the evidence must be based on speculation by definition.
And having an expert in the substantive area of law, who practices in the community and who has a distinguished reputation throughout the community, who offers an opinion that the plaintiff would have been better off if the substandard conduct had not occurred — even that may be deemed “speculative.”
This is why the cost of legal malpractice insurance is a pittance compared to, say, medical malpractice insurance. It is not only because lawyers’ clients do not go blind, lose limbs, loved ones, or life itself through legal malpractice as patients may through medical malpractice. It is also because of the non-scientific nature of legal work, the complex multi-factor causation inherent in almost any legal outcome, the fact that clients are more often be blamed for their bad outcomes by incompetent lawyers than patients can be blamed for poor outcomes by incompetent doctors, and so on.
Lawyers sometimes play critical roles in the lives of their clients. Holding lawyers accountable for every bad result would be absurd, unfair, and unworkable. But the argument can be made that our legal system perhaps leans a little too far in the opposite direction.
Seth Leventhal represents clients with claims of legal malpractice. The challenge in such cases is substantial. On the other hand, vindication of the rights of victims of legal malpractice, as hard as it is, is rewarding.