• October 26, 2017

Thoughts About Legal Malpractice Claims for Non-Lawyers: The Three C’s:

Over the past seven years of practice, LEVENTHAL pllc has handled over a dozen claims for clients with claims of legal malpractice or claims related to legal malpractice (e.g., fee disputes) against Minnesota lawyers. All but one of the ten has been resolved favorably for our clients.

Over that same period of time, we have consulted with over 100 potential clients who feel strongly that they have been the victims of legal malpractice.

Why do so many people feel so strongly that they are the victims of legal malpractice but nine times out of ten we won’t take their cases?

1. Cost: It is extremely rare that a client is prepared to pay a lawyer hourly to bring a legal malpractice case. So such claims are generally brought on a contingent fee basis. If your legal damages are less than $100,000, it is extremely difficult to bring a legal malpractice case that will make economic sense. That is, if the case is taken on a contingent fee basis, the legal malpractice lawyer’s investment of time will be far greater than his share of the recovery. And it is nearly impossible to win an award of attorneys’ fees for the legal malpractice plaintiff. Conversely, influenced by popular culture, many people have the impression that one can simply inflate a damage claim in a malpractice case or conjure up a dollar amount out of thin air (“you cannot imagine the pain and suffering that nincompoop lawyer put me through–I say we demand $1 million!”). This impression is mistaken. As all trial lawyers have told clients — there is a world of difference between “what you think you should be entitled to” and “legal damages” realistically recoverable in civil litigation. Looking at “cost” from another angle, lawyers can be extremely expensive and sometimes egregiously expensive. Some lawyers will take several hours to write an email and the like. Excessive fees ≠ legal malpractice.

2. Causation: Very often, potential clients come to consult with a legal malpractice lawyer with iron-clad evidence of their previous lawyer’s mistake(s). Based on that, the potential clients feel strongly that they have a “slam dunk” case. In fact, frequently, the evidence is the previous lawyer’s own admission of having made a mistake (missing a deadline, for example). Sometimes, the potential client’s evidence is a judicial opinion that openly highlights or criticizes a lawyer’s lapse. But keep in mind, first, that lawyers are people, people make mistakes, and the law does not impose a standard of perfection on lawyers (or people generally).

Second, and far more importantly, a lawyer’s failure to call a witness, to make an argument, to attend a hearing, might be the basis for a legal malpractice lawsuit, but very often it is not. A legal malpractice plaintiff must not only establish that her lawyer made a mistake, and must not only establish that the mistake was of a seriousness that rose to the level of a breach of the standard of care for lawyers in the community, but she must also prove that the lawyer’s error(s) CAUSED the client’s loss. Often, potential clients will go through their stories of alleged malpractice by their lawyers and, in their own telling, they recount how the judge was an idiot who fouled up, how the other side’s lawyer lied, how witnesses perjured themselves, and so on. They fail to recognize that spreading responsibility for their misfortune among several parties (and there are, of course, very often multiple causes for misfortunes, legal or otherwise), they have identified the fatal defects of their supposed legal malpractice claims.

Third, unlike many medical malpractice cases, where patients might be passive participants in their medical care, often clients are critical participants in the attorney-client relationship. It is not uncommon for lawyers to defend claims of malpractice by blaming the clients for a bad outcome (for example, failing to disclose material information, not following legal advice, not seeking advice before acting, etc.).

3. Culture: There are several points that fall under this heading. First, many lawyers who are NOT experienced in bringing or defending legal malpractice claims misinform their clients that the clients have decent malpractice claims against former lawyers. “Successor lawyers” can be somewhat cavalier or casual in criticizing clients’ prior counsel. Part of this is, frankly, marketing: trash-talking against a competitor or 20/20 hindsight. Part of it is the calculated management of expectations (“I will do what I can for you but the previous lawyer really screwed things up”). Part of it is sincere and, perhaps, justified criticism, but criticism that is often detached from an appreciation of the causation piece of a legal malpractice action. In particular, lawyers who reject clients’ cases where previous lawyers were retained will often attribute their rejection to actions taken or not taken by the earlier counsel. This is easier than telling a client to his face many other reasons for turning away a case: (1) that he has no claim and never did, or (2) that the client may have had a claim but the client, himself, messed it up one way or another; (3) that the second lawyer does not care for or trust the client, and so on.

And, finally, as to the “culture component” of the challenge of legal malpractice actions: lawyers do not like them and judges are lawyers, of course. “There but for the grace of God go I,” is a common-place adage that trips off lawyers’ lips when they hear of claims of legal malpractice. We lawyers say it often. You know judges are thinking it. This is the bottom layer of difficulty in bringing a successful claim for legal malpractice.

If, after reading this and thinking about your case, you still think you might have a viable claim for legal malpractice, call me, at LEVENTHAL pllc, to discuss: 612-234-7349.

NOTEThis Post Is NOT Legal Advice. Please NOTE our Disclaimer.

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