Anatomy of a Legal Malpractice Claim: Effect on the Targeted Attorney
by M. Leigh Bartlett
(County Bar Update, February 2002, Vol. 22, No. 2)

 

Anatomy of a Legal Malpractice Claim:
Effect on the Targeted Attorney

By M. Leigh Bartlett, Esq., Vial, Hamilton, Koch & Knox, L.L.P., Dallas, Texas

No attorney likes to think about the prospect of being the subject of a malpractice claim; however, it makes sense to look objectively at how such a claim plays out before the fact to be better prepared to address the matter in an effective and efficient manner if the attorney must defend a claim at some point in the future.

Act I: The Claim is Made or Suit Filed

How should an attorney react when notified of a malpractice claim against him or her? The best advice is probably three-fold:

Don't Panic. It's only natural for a lawyer to respond emotionally when a client makes a malpractice claim against him or her. It's essential, however, that the lawyer defendant makes a conscious effort to suppress emotionalism and view the situation as objectively as possible.

Don't Try to Deal with the Claim Yourself. The lawyer's traditional role as an advocate contrasts dramatically with his or her role as a defendant. Any urge to act as his or her own advocate should be suppressed. Too often, the lawyer defendant's efforts to short-circuit a claim by taking matters into his or her own hands, while good intentioned, only serves to damage his or her defense. Moreover, direct contact with the claimant or the claimant's attorney rarely succeeds.

For example:

  • If the lawyer defendant apologizes or expresses any degree of remorse, this non-privileged communication will most certainly come back to haunt the attorney later during the proceedings.
  • If the lawyer defendant attempts to explain that no malpractice occurred or makes settlement overtures, such actions may adversely prejudice the ultimate defense strategy.

Get Organized. Whether before or shortly after defense counsel is appoint-ed, the lawyer defendant should gather and save all information and documentation relevant to the claim.

  • This includes not only the obvious -- the matter file -- but also the not-so-obvious, such as time sheets, call slips, calendars, personal diaries and information stored in the computer.
  • Prepare a chronology of the relationship with the client while the information is as fresh as possible. Include the pros and cons of the relationship and representation. This exercise generally reveals key issues, strengths and weaknesses of the claim and defenses. It also may bring to mind locations and types of information not readily recalled on first blush.
  • Prepare a cast of characters. This should include witnesses with knowledge of facts relevant to the underlying representation as well as witnesses regarding the malpractice issues. Again, include both the favorable and unfavorable witnesses.

In summary: React as you would advise a client to react and begin by (1) placing your insurance carrier on notice, (2) preserving and collecting all relevant evidence, (3) involving your defense counsel as early as possible and (4) discussing the case only with your law partners, insurance company and counsel.

Act II: Investigation and Pre-Trial Discovery

While the lawyer defendant, now a client, must continue to avoid the natural emotional responses to the malpractice claim, he or she must nonetheless be prepared to play a significant role in all aspects of the defense. Just as the doctor who becomes a patient must adapt to a certain degree of role reversal, the attorney who becomes the target of a malpractice claim must do the same. The lawyer client should recognize and avoid assuming either of two extreme roles:

The Ostrich. This lawyer client buries his or her head in the sand based on that "sound" philosophy that if you ignore the claim, it will surely go away. This individual refuses to accept the reality of the situation. The lawyer defendant either completely fails to do what is necessary to assist in the defense or procrastinates to the point that his or her participation is marginal at best and self-destructive at worst.

  • The result? The lawyer client hamstrings defense counsel and the liability carrier and in the process undermines the defense.

Dr. Jekyll and Mr. Hyde. This is the obsessive-compulsive multiple-personality lawyer who labors under the delusion that he or she is not only the client but also the defense counsel. The lawyer defendant becomes involved in every detail of the defense and constantly contacts the defense counsel with the uninvited "suggestion du jour". In this "play" that is a malpractice lawsuit, the multiple-personality defendant fancies playing the dual roles of starring witness for the defense and director of the production.

  • The result? Over-involvement can result in a brittle relationship between the client and defense counsel, not to mention causing the defense counsel to spend unnecessary, duplicative or unproductive time working on the case. The negative implications also include diversion of the client and defense counsel from the significant issues and overall increased litigation expense. If the insurance policy limits are self-liquidating (reduced by defense expenses), the Jekyll-and-Hyde lawyer stands to lose precious policy limits that he or she may wish later could be used to pay a settlement or judgment.

Now that the undesirable roles have been identified, what role should the "perfect" lawyer client assume?

The Team Player. This role achieves the happy medium between the two extremes. In concert with defense counsel, this lawyer client understands the importance of the role he or she must play in contributing knowledge and expertise to the defense of the claim.

What role does defense counsel play and what should the relationship be between the lawyer client and defense counsel? Of probably equal significance in securing the appropriate level and type of involvement of the lawyer client is the selection of the defense counsel and defense counsel's ability to gain the respect and trust of the lawyer client. The appropriate relationship between the lawyer client as the central player in the events of the claim and defense counsel as the director of the defense of the claim will go a long way toward putting all aspects of the "team" relationships into proper perspective.

Initially, the lawyer client has every right to expect that defense counsel will arrange a face-to-face meeting soon after the engagement so defense counsel can be fully briefed on the underlying facts and the two can collaboratively identify the key issues and defenses. At this time, they also should begin to develop a blueprint for the strategies to be employed in defending the claim as well as a preliminary evaluation of the exposure presented by the claim. A competent legal malpractice defense counsel recognizes the value not only of the lawyer client's knowledge and insight into the underlying facts but also of his or her expertise in the area of law involved in the claim.

  • The result? The lawyer client will understand he or she has nothing to fear by being totally candid with defense counsel.
  • The lawyer client can leave the day-to-day management of the defense to defense counsel without worrying that he or she needs to be involved in routine matters, such as minor discovery or strategy issues.
  • Conversely, the lawyer client who assumes the Team Player role will not be obsessed with every detail of the claim handling to an extent that adversely impacts the ability to continue to maintain an ongoing law practice.
  • Thus, the ideal defense consists of a collaborative effort among the lawyer client, defense counsel and, to a lesser or greater extent depending upon its practices and perhaps the nature of the claim, the liability insurance company.
  • Ultimately, the Team Player lawyer client should have enough confidence to allow defense counsel to truly function as the Director. This is where objectivity again becomes significant. Indeed, if the lawyer client has a tendency to over-emotionalize aspects of the process, it's the defense counsel who often can maintain the objectivity necessary to properly evaluate the matter and plot strategy and recommendations accordingly. Under certain circumstances, it may be helpful to the orderly handling of the claim to designate a partner with the client firm who wasn't involved in the representation at issue to assist in coordinating with the lawyer client and defense counsel.

Act III: Settlement or Trial

"Case Within a Case" Issues. Evaluation and trial of legal malpractice cases present unique complexities because of the two-pronged nature of proof generally required to place liability on the lawyer:

  • First, the plaintiff must prove that if the lawyer defendant had handled the representation differently, the result of the underlying matter would have been different -- either the plaintiff would have prevailed or a more advantageous result would have been achieved.
  • Second, the plaintiff must prove that the lawyer defendant's choices or actions in the underlying representation fell below the appropriate standard of care and consequently constituted negligence.

In other words, the jury must understand not only the malpractice issues but also the body of law relevant to the underlying area of practice involved in the representation. It often falls to the defense to attempt to simplify these complexities for the trier of fact. Given his or her special knowledge of the underlying practice specialty, the lawyer client can play an important role in providing insight and advice on these issues. This includes assistance to defense counsel to identify weaknesses in the plaintiff's theories, assist with cross-examination of plaintiff's expert witnesses and collaborate on the selection of defense experts. Again, the Team Player participates in this process with a high degree of objectivity, carefully avoiding any tendency either (1) to hide from this process or (2) to micro-manage it.

The Lawyer Client as Defendant and Witness. Taking the legal malpractice case to trial now presents an increased risk to the lawyer defendant primarily because of the pervasiveness of the public's negative attitude toward lawyers. The lawyer defendant must be acutely aware of the legal profession's image and work to avoid reinforcing that image in the eyes of the jury. While attention to this issue should begin as early as the paper discovery and deposition stages of the case, the stakes are never higher than during trial. Unfortunately, the voir dire process may not identify all of those on the panel who have negative preconceived notions about lawyers in general.

The lawyer defendant's actions and demeanor -- not just when the lawyer is testifying but throughout the trial -- will be closely observed by the jury. The lawyer defendant who appears to be arrogant or unconcerned will play right into the negative stereotypes the jury is likely to hold about lawyers in general. Likewise, the lawyer who appears to avoid direct answers to questions or who utilizes complex legal jargon may result in the jury's reliance on the negative stereotypes rather than its focus on the specific facts of the case.

Of course, this is not to say that the lawyer defendant shouldn't convey an appearance of self-confidence, but to emphasize that he or she must be careful to avoid letting a self-confident attitude cross the line to an attitude of arrogance or condescension. Properly addressing this aspect of the case necessarily involves careful planning by the lawyer client and defense counsel on how the public's perceptions about lawyers may impact all of the key issues, the lawyer defendant, the plaintiff and the lawyer expert witness.

At no other point during the process is it more important that the lawyer client steer clear of any temptation to assume the advocate's role, instead making a conscious effort to maintain his or her role as client.

Finale

The foregoing summary is not an attempt at an exhaustive discourse on the impact of a malpractice claim on the affected lawyer but seeks to highlight generally the appropriate nature of the lawyer's reaction to the claim and key considerations relevant to the lawyer client's participation in the defense of the claim.

As a general rule, when the lawyer client pays attention to these issues, the likelihood of an acceptable resolution of the claim -- whether by settlement or trial -- is greatly enhanced. Moreover, another likely, not to mention significant, result -- At the end of the day, the lawyer client finds that the process of working through the claim from Prelude to Finale in this manner serves to diminish the adverse impact of the claim not only on the lawyer's practice but also on the lawyer personally.

 

(c) Aon Attorneys' Advantage. Reprinted by permission. This article was originally published in The Quarter Hour newsletter for Attorneys' Advantage Insurance Agency clients. This article does not establish or recommend specific guidelines or standards for legal practice or its management or for attorney liability exposures or their management. Readers should consult legal, financial, insurance and other advisors if they have specific concerns. Neither Aon Attorneys' Advantage nor its affiliates assume any responsibility for how the information in this article is applied in practice or for the accuracy and completeness of this information. Reproduction without written permission of Aon Attorneys' Advantage is prohibited. Aon Attorneys' Advantage is the LACBA Sponsored Lawyers Professional Liability Insurance Program.
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