Professional Liability

We have tried a number of legal malpractice claims and similar professional liability cases involving accountants and financial advisors (cases which have striking similarities to legal malpractice claims). Some members of the firm have also served as experts and “personal counsel” in these kinds of cases. Malpractice litigation tends to be particularly stressful for the clients on both sides of the case, so it is worth reading on to examine our specific methods of handling these cases, which have developed over years of practice.

Examples of our work in this field includes the following types of malpractice claims:

• Conflicts of interest
• Inadequate disclosure
• Breach of fiduciary duty
• Expired deadlines (including statutes of limitation)
• Neglect of client matters
• Misuse, mis-accounting or embezzlement of trust funds
• Failure to engage particular kinds of expert witnesses
• Failure to consider, investigate or argue essential legal theories

Our handling of legal malpractice matters has been particularly successful. In one recent case, we were asked to take over the defense of two attorneys in a case that was brought against them by their former client in a criminal defense case, who had been convicted of arson and sent to prison. In the client’s criminal appeal, the Wyoming Supreme Court had ruled that these attorneys had been “ineffective as counsel,” freeing the prisoner after years of incarceration. After we became involved in the case, which had been pending for a considerable period of time and was nearing trial, we were able to prove to the jury that the Supreme Court had not had all of the facts, and we obtained a defense verdict for our attorney-clients in the malpractice case. In yet another matter, arising out of a shareholder derivative suit, we were successful in recovering a considerable settlement on behalf of clients who had been damaged by the attorneys’ failure to recognize an inherent conflict of interest, even though the court had initially ruled that there was not a direct attorney-client relationship between the clients and the attorneys.

Our Approach Begins With Detailed Analysis

Our method of litigating legal malpractice claims begins with a detailed analysis of the underlying legal matter and the status of the original client (now claimant/plaintiff) to learn all that can be known about the circumstances of the representation. We then analyze the communications between the attorney and the client, as these are the bedrock upon which any legal malpractice case is tried.

We have learned that the complexities of a legal malpractice action are much easier to analyze after a detailed chronology of events, with an eye toward the communications between the attorney and the client. One central issue in every legal malpractice case involves the degree and quality of communication between the attorney and the client, while a matter of nearly equal importance (though surprisingly, not quite as critical) is the successful monitoring of deadlines. A third key issue involves conflicts of interest.

A detailed understanding of the rules of professional responsibility that govern the practice of law is paramount, for the standard of care owed by an attorney to a client is defined in those rules and the caselaw interpreting them. Expert testimony regarding the attorney’s standard of care is also important, though expert opinions in such matters must be consistent with the absolute requirements of these rules.

The Structure Of Malpractice Cases

To the extent that the litigation of a legal malpractice case involves after-the-fact review of the handling of a matter, it is superficially similar to an appeal. The context of the review may be different—gauging the error of a trial court versus the error of a handling attorney—but both an appeal and a legal malpractive case involve hindsight analysis of the course of a case.

An appeal is measured against set legal guidelines, whereas a malpractice case is measured against what a plaintiff’s expert defines as the “standard of care under the circumstances” as modified by what the defense offers to contradict that assertion. The missing link in the presentation is often the information relating to the client or the matter that is not part of the lawyer’s underlying legal file, which raises the tactical question of whether the information that was not documented can be communicated convincingly to a jury.

A “Case Within A Case”

A legal malpractice case is really two cases—a ‘case within a case,” as the term is often used. The issues in a legal malpractice case include the trial of the merits of the underlying legal matter within the determination of whether the attorney or firm departed from the standard of care owed to a client.

When we represent a party in a legal malpractice case, we carefully analyze the file, all documentation and information from all available sources, with a very surgical approach. We develop a chronology, or timeline of events, and continue our analysis of the attorney’s handling of the matter and his or her communications with the client, the court, opposing counsel and others. We examine what the documentation portrays in terms of the scope of the attorney’s responsibility and we then analyze the extent to which those responsibilities invoked specific duties or action items, strategies, required filings, deadlines, budget issues and any special considerations influencing the handling of the file. We determine whether there were missed steps, and if so, whether there was a reason for any omission or mistake.

A bad outcome alone is not proof of malpractice. The mere fact that a case has had an unfavorable outcome does not, by itself, establish that attorneys have committed malpractice. Good lawyers lose cases. It may sound overly simplistic, but the American system of justice presumes that both sides in a court battle will have competent lawyers, and that one side will lose nevertheless. It is also true that even the best lawyers make errors (or at least what can look like errors in hindsight) in every case. Finally, there is a difference between an error, or a mistake, and malpractice, and not all lawyers are equal in skill or experience, so the fact that an attorney could serve as an expert and criticize or praise legal work after the fact does not necessarily mean that such opinions are correct.

This last point depends to an extremely high degree on how the jurors are educated about the matter as the case is presented. The key to handling a malpractice case is to understand how a jury is likely to respond to the facts of a case, and this depends to an extremely high degree on how the jurors are educated about the matter as the case is presented. Of course, most malpractice cases are either settled before trial or resolved on legal motions, for motions practice is particularly extensive in most malpractice cases.

Continuing Analysis

Working our way through the file, we forumulate a list of issues and questions that are fact-intensive. From that list, we then begin to forumulate discovery issues and damages issues, as well as a basis for further research. This is a preliminary analysis phase, and when it is complete, we are ready to develop a customized theory of the case for that specific matter. The key to this kind of case analysis is a blend of systematic thinking and careful review, rather than merely taking the file at face value and concentrating on the overall result the attorney obtained. Case theories developed in this manner tend to be more effective at trial and more likely to survive dispositive motions practice.

The question of whether any failure to meet the legal standard of care for an attorney actually caused damage to the client or worsened the client’s position is usually a central issue in the case. Most legal malpractice claims arise out of a combination of two things: (1) the client’s dissatisfaction with what is perceived as an adverse result, and (2) dissatisfaction on the part of the client with the communication received from the attorney during the matter. The difference between what drives a malpractice claim and what makes a malpractice claim valid is very important for malpractice attorneys to understand, and creates the framework for successful handling of these claims. Interestingly, while these two points are the driving force behind most attorney malpractice claims, they are rarely central to the legal or factual merits of the malpractice action. Rather, the issues that control the value of a malpractice claim are: (1) whether the underlying position of the client meritorious (meaning that the client should have had a better outcome); and if so, (2) whether the client”s position was actually damaged by any failure by the attorney to meet the minimum standard of care under the circumstances.

Malpractice Insurance Coverage Issues

We have an extensive experience in litigating the insurance coverage issues related to professional liability, particularly in the field of attorney malpractice, and we are well versed in the nuances of typical professional liability policies—particularly claims made coverages.

The key to success in litigation is to be realistic and careful in terms of how a "win" is defined under the circumstances of any given dispute. No two cases are exactly alike. Remember that no attorney or firm can guarantee success according to any arbitrary standard or in terms of a favorable result at trial. Whether or not to try a case or settle a case is a decision a client makes with the advise of an attorney, and no attorney can guarantee anything about the outcome of a civil case. Any case, tried to a jury or a court, might be resolved unfavorably. Trials are inherently unpredictable. Statements contained on this website regarding the ability of the professionals at Godfrey | Johnson, P.C., are based upon good faith perceptions of our abilities demonstrated over years of practice, and are not intended to imply that the attorneys have never lost a case or that we can assure that any particular case will be won at trial or on motions. The best way to evaluate any case is to communicate about it in depth with qualified legal counsel, providing all relevant information to the attorney. It is dangerous to withhold facts from an attorney, and can lead to the delivery of legal advise that is fundamentally flawed. No attorney can prevent this from happening, as attorneys all must rely to some extent upon the information that is provided to them by their clients. The best way to evaluate an attorney is by that attorney's track record, and ours is open for discussion in any specific field. Our abilities as described on this website are based upon experience in actual cases, which have been successful more often than not. ©2015 Godfrey | Johnson, P.C. All rights reserved.