D. Evaluating the Defenses Your Attorney Might Raise
You must understand the following before commencing a lawsuit against your former attorney: every effort—some proper and some not—will be made by your former attorney, and the law firm retained by the insurer, to destroy your case before it gets to a jury. It is planned for you to become discouraged by the delay, expense, distortions and complexity, of the litigation.
To survive the continuos effort to destroy your claim, you will have to come to understand the mind set of your former attorney. Your attorney will never admit that he caused any damage to you. And you will have to understand the mind set of the malpractice insurer. It will freely spend money to litigate and delay a resolution of your claims if that offers a long-term financial benefit (such as earning interest on the money owed to you, the possible death or unavailability of witnesses at trial, increasing the risks to you of losing at trial by advancing the defenses set out below, bankrupting you, convincing you to compromise on a settlement, etc.). Nevertheless, a realistic approach to prosecuting your claims can be designed for you if all of these factors are carefully taken in to consideration.
The typical defenses raised by an attorney when sued by a former client are these statements:
The Statute of Limitations has Destroyed Your Late Claim! Every state limits the length of time you have to sue your attorney. The time period generally ranges from 2-6 years, depending on the claims. The time period begins to run at different points in the relationship with your attorney, depending on the state. For example, the time period may begin to run at the time of the mistake, at the time you discover the mistake, or at the time when your attorney stopped representing you on the matter being handled. You must always act promptly to determine when the time begins and ends on your right to file a legal malpractice claim. Practically speaking, you must also act promptly on any wrongs or damages you have experienced so you can take advantage of the fresh memory of your witnesses and act before documents related to your case are lost, misplaced, or destroyed.
I Used Good Judgement (the Attorney Judgement Rule). An attorney is allowed to exercise broad judgement on your behalf in the prosecution of your case and at trial. If a bad outcome results from your attorney's exercising reasonable professional judgement, it will not be seen as an actionable wrong. Remember, there's always a "loser" at trial, and it's not necessarily because the party's lawyer committed malpractice. The key questions are whether the decision made by your attorney was in fact an act of exercising good judgement, and whether it was unreasonable because of the added risks to which you were exposed. These are questions that will be decided by a judge before your claims will be heard by a jury.
Your Claim Falls Beyond the Scope of Retention! When you retain an attorney for one matter, she does not become your attorney for all matters. So, if a wrong occurs outside the scope of the services provided by your attorney, she will not usually be held liable for these wrongs.
The Damages You Claim were Caused By You! When you blame your attorney for causing damage to you, she will invariably try to find some way to show that the damages were really caused by you. For example, she might claim that you failed to cooperate with her, or she might accuse you of having withheld information important to your underlying case or transaction. Unfortunately, the confidential information you once gave to your lawyer in your attorney-client relationship can, and will, be used to create ways to shift the blame to you. While this will seem immensely unfair to you, the courts will generally permit the use of privileged information in the attorney's defense.
The Damages You Claim were Caused by Someone Else. There is yet another method that your attorney and his insurer will use to shift the blame away from your former attorney. They will try to identify other individuals who caused the damages to you and make them part of your case. This will delay your case, and create further complexity to your trying to obtain compensation for the damages caused by your attorney.
There Really Was No Lawyer-Client Relationship for the Events You Define! If your lawyer can prove that there was no attorney-client relationship with you, then he obviously did not owe you any obligation to perform on a contract or meet the standards of care that exist in your state. Nor does he have any duties of care, fidelity, and honesty. Thus, he will owe no money in compensation for damaged incurred outside of the attorney-client relationship.
Your Underlying Case was Worthless! Another clever way for an attorney to evade responsibility for the damages caused to you will be to attack the worth of the underlying case she was working on when the wrongs were committed. If the case was worthless, then there would be no ultimate damage caused to you, no matter how bad the attorney's wrongs were. And, thus, no compensation would be due to you at all.
Even if Your Underlying Claim Had Value—You Couldn't Collect on It! The related defense of "collectibility" is a good one. It limits the amount of money you can obtain in compensation from your attorney (or from the insurer) to the amount you could actually collect on the underlying case. In other words, no matter how awful the wrongs of your attorney, you cannot obtain more compensation from him than you would have been able to recover in the case that was ruined. For example, if your underlying case was worth a million dollars, but you could not have collected any more than a hundred thousand dollars from the defendant you were suing (had you won the case), then you would be limited to a hundred thousand dollars in the legal malpractice case.
You Didn't Mitigate Your Damages. You, as an injured client, have an obligation to reduce or mitigate the damages you have experienced. In other words, if there are opportunities or circumstances for you to take some step to minimize the injury, you must do so. Your attorney will only be liable for the damages that he caused and that you could not reasonably minimize.
In summary, suing your attorney is a costly and complicated undertaking. Because of this, a comprehensive evaluation of the strength of your claims, and your former attorney's potential defenses must be made before you commence a lawsuit against your attorney. Whether you do it yourself, or, far preferably, ask an attorney experienced in legal malpractice to conduct this evaluation for you, keep in mind that all four factors—your damages, the existence of malpractice insurance, liability of your attorney, and defenses available to your attorney—must be weighed together to properly evaluate your case.
