a case where a lawyer sues the client

Question (s) For Expert Witness

1. What is your background in legal malpractice, specifically in divorce law?

Expert Witness Response E-227684

My legal experience is in divorce work. I review family law matters every day and have gotten into and out of cases close to trial. I am on the peer review committee for a state attorney grievance commission and in this capacity, I determine whether the attorney violated the rules of professional conduct.

What happens when a negligent lawyer falls below the standard of care?

When a negligent lawyer falls below this standard of care, they have committed legal malpractice.

How to pursue a malpractice case?

Before pursuing a legal malpractice case, pull together all relevant documents and information. Collect communications between you and your lawyer as well as information about the case that led you to hire the attorney in the first place.

What are the common mistakes lawyers make?

However, we tend to see common mistakes that lawyers make over and over, including: 1 Inaccurate billing; 2 Missed deadlines; 3 Failing to communicate with the client; 4 Settling a lawsuit without the client’s consent; 5 Giving inaccurate legal advice; 6 Stealing or losing money or property that belongs to the client; 7 Incompetently drafting legal documents that do not protect your rights; 8 Failing to file a case before the expiration of the statute of limitations; and 9 Taking a case despite an existing conflict of interest.

What is breach of care?

Breach. A breach occurs when a lawyer fails to exercise reasonable care in your representation. For example, if the standard of care includes filing pleadings on time and your attorney misses an important deadline, they will have breached the standard of care.

What is an inaccurate billing?

Inaccurate billing; Missed deadlines; Failing to communicate with the client ; Settling a lawsuit without the client’s consent; Giving inaccurate legal advice; Stealing or losing money or property that belongs to the client; Incompetently drafting legal documents that do not protect your rights;

What to do if your lawyer has committed a crime?

If you think your lawyer has committed a crime, you can also call the police to investigate.

What happens when you are injured in a legal malpractice case?

Typically, injured clients suffer financial losses as a result of legal malpractice.

What is a settle and sue case?

The facts of the “settle and sue” case may mirror the following: A client files suit (or is a defendant); the client settles the case with advice from and consultation with his or her counsel and signs a settlement agreement; and the client then sues his or her attorney for legal malpractice , lamenting the deal.

Why is the defendant-attorney forced to locate and dust off his or her file from storage?

The defendant-attorney is now forced to locate and dust off his or her file from storage (think the government warehouse in the last scene of Raiders of the Lost Ark) to defend the decision to settle a case that he or she believed the client had endorsed.

What is the goal of resolving a case?

Rather, the goal of resolving the case is to reach a settlement that the client can understand and accept given the strengths and weaknesses of the case. In short, don’t promise the moon. Merely promise that you will provide the best recommendations you can. Get client input.

Why does Buyer's Remorse manifest itself?

Buyer’s remorse has a deeper psychological explanation, but it manifests itself because it is easier to imagine a better choice retrospectively than to embrace the choice we have already made.

Why is Bethea a difficult hurdle?

This is often a difficult hurdle because it requires credible evidence that the plaintiff’s adversary in the underlying suit would have paid more to settle the case.

Can you settle a case against a former attorney?

That is not generally the case. Most states do not consider a client’s decision to settle as a bar to legal malpractice cases against his or her former attorney. “Settle and sue” plaintiffs usually must prove that a better outcome could have been obtained at trial or that a better settlement could have been negotiated.

Can an attorney defend settlement and sue?

Practice Tips to Defend “Settle and Sue”. An attorney may not be able to absolutely insulate himself or herself from a lawsuit raised by a former client post-settlement , but there are tips that one may follow to allow a more favorable opportunity to defend such a claim. Here are some suggestions.

How many legal malpractice cases are counterclaims?

According to the American Bar Association, an estimated 2/3 of all legal malpractice claims come about as counterclaims to suits for fees. Suddenly, the case is no longer about how much time you spent on the case multiplied by your hourly rate.

What happens if you don't follow the proper protocol?

If you have not followed the proper protocol, the court denying your application may be the least of your problems. It could also sanction you for your noncompliance, or require you to disgorge the fees you’ve already been paid. Tips for Fee Disputes.

Who is Cathy Trent-Vilim?

Cathy Trent-Vilim is a partner of Lamson, Dugan & Murray. Throughout her years of practice, Ms. Trent-Vilim has worked on a wide range of commercial and insurance matters, including personal injury insurance defense, coverage claims, contract claims, crop insurance claims, legal malpractice, appellate practice and complex commercial litigation. She has tried cases in the Nebraska county, district and federal courts, in arbitration proceedings, and has successfully argued cases before the Nebraska Court of Appeals and Supreme Court.

Do you have to disclose malpractice insurance?

Third, regardless of the merits of a malpractice claim, the fact that you have been sued for malpractice will likely have to be disclosed on your next malpractice insurance application. Guess what effect that could have on your rates?

How much did the plaintiffs sue their lawyer?

So, they sued their attorney for more than $2.7 million. Both the trial court and the Court of Appeal rejected the legal malpractice claim and ruled in favor of the lawyers. The courts found, despite the errors of the lawyer, there was too much speculation about the possibility of a better settlement or result.

How long does a malpractice lawsuit last?

The facts of each case will control the analysis. First, remember the statute of limitations for a legal malpractice lawsuit is relatively short, usually one year. So, if you switched lawyers over a year ago because your lawyer made serious mistakes that hurt your case, and your second lawyer managed to obtain a reduced settlement for you, ...

What happened in Marshak v. California?

In a 1999 California case ( Marshak ), the defendant lawyer represented the client in a divorce case. After a mandatory settlement conference, the client and his ex-wife stipulated to a settlement of their dissolution action in which, among other things, the husband was relieved of any continuing support obligations, and an agreement was reached about distribution of the parties’ property.

When was the malpractice case in Thompson?

An earlier malpractice case, in 1995 ( Thompson ), that arose out of a settlement of the original medical malpractice case also proves the point.

Can you settle a case with a lawyer?

In some settlement cases the answer is “yes”, but in others the answer is “no”. You need to obtain a professional evaluation by a certified legal malpractice lawyer in every case in which you believe “but for” the conduct of your lawyer a better settlement should have been obtained.

Did the doctor provide any competent evidence of the actual worth of the assets?

While the client proffered some evidence that the lawyer has acted negligently by ignoring information about the value of the marital residence and failing to submit evidence about the value of the plaintiff’s medical practice, the doctor did not provide any competent evidence of the actual worth of those assets.

Is settlement and sue difficult to prove?

Second, these so-called “settle and sue” cases are generally disfavored by the courts and often times difficult to prove. The analysis by the courts most often focuses on the issue of “causation”, and they often rule in favor of the lawyers finding that the client cannot establish that, “but for” the conduct of the lawyer, the result (i.e. the settlement) would have been different.