what is a lawyer mitigation

Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may never have disclosed.

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What does mitigation mean in legal terms?

Mitigation refers to the lessening of something. In tort law, there is a requirement that someone injured by another's negligence or breach of contract must take reasonable steps to reduce the damages, injury or cost, and to prevent them from getting worse.

What is the significance of mitigation?

The Mitigation Fee Act also imposes additional requirements for fees imposed to provide for an improvement to be constructed to serve a development project, or which is a fee for public improvements, as specified, including that the fees be deposited in a separate capital facilities account or fund. This bill would require a local agency that requires a qualified applicant, as described, to deposit fees for improvements, as described, into an escrow account as a condition for receiving a ...

What is a sentence for mitigation?

What is sentence mitigation? In criminal law, a mitigating factor, also known as extenuating circumstances, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence. Click to see full answer.

What are examples of mitigating circumstances?

What are examples of mitigating circumstances?

• The defendant's age.
• The defendant's mental capacity.
• The crime was an accident.
• Self defense.
• Provocation or "heat of passion"
• The defendant repented from his actions.

What is mitigation mean in law?

In a breach of contract case, upon receiving notice that one party to a contract does not intend to perform, the other party is required to mitigate damages, meaning that it must take reasonable efforts to avoid further losses from the breach.

What does mitigation mean in a court case?

Mitigation is a complex, multi-pronged approach to preparing for sentencing for a defendant's crime with the goal of reducing or lessening the effects of aggravating factors. Mitigation is the story-telling part of representing the criminal defendant.

What are some examples of mitigating circumstances?

Mitigating circumstances can include things such as the age, mental state, history of abuse, or lack of criminal record of the defendant. These represent specific circumstances that lessen a person's culpability in court. This definition is also applied to mitigating factors.

What happens at mitigation?

At a mitigation hearing, you will admit to the judge that you did commit an infraction and attempt to explain the circumstances in order to make the judge see that you were justified in your actions.

What are the 5 mitigating circumstances?

Mitigating factors include previous good character, remorse or good conduct following arrest, voluntary compensation of victims, a full admission of facts and guilt, duress, very young or old age or minor role in the offence.

What qualifies as mitigating circumstances?

Mitigating circumstances are any serious circumstances beyond your control which may have adversely affected your academic performance. These include but are not limited to: Medical conditions. Personal and domestic circumstances.

What is mitigation in criminal law?

Any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others.

What are the two types of mitigating circumstances?

Two kinds of mitigating circumstances: Ordinary or privileged mitigating circumstances. An ordinary mitigating circumstance can be offset by a generic aggravating circumstance, whereas privileged mitigating circumstance cannot be offset.

Is pleading guilty a mitigating factor?

a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.

What is the plaintiff doing if they mitigate damages?

If the plaintiff takes reasonable steps to mitigate his losses, he may recover the costs and expenses incurred in mitigation of damages. The valuation of damages is, therefore, a “balancing process” as the Federal Court of Appeal stated in Redpath Industries Ltd.

What happens if you don't mitigate?

Failure to mitigate damages can impact a personal injury claim because it may reduce the amount of compensation that you receive. If there is a genuine issue of whether you failed to mitigate damages, you may receive a lower settlement or a lower award at trial.

What is an example of mitigation of damages?

In TORT LAW mitigation of damages refers to conduct by the plaintiff that, although not constituting a civil wrong itself, may reduce the plaintiff's recovery. For example, if the victim of an assault used provocative words prior to the assault, the words may mitigate the plaintiff's damages.

What does "mitigating" mean?

MITIGATION. To make less rigorous or penal. 2. Crimes are frequently committed under circumstances which are not justifiable nor excusable, yet they show that the offender has been greatly tempted; as, for example, when a starving man steals bread to satisfy his hunger, this circumstance is taken into consideration in mitigation of his sentence. 3. ...

What is the meaning of reduction?

reduction. The term is most often found in two phrases: ‘mitigating circumstances’ - an attempt to keep the sentence to a minimum; and in mitigation of damages, the duty on the victim of a contract-breaker or a delinquent or tort-feasor to keep his losses within reason.

What is a mitigation specialist?

A mitigation specialist is [] an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.

What is the National Alliance of Sentencing Advocates and Mitigation Specialists?

The National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS), a section of the National Legal Aid & Defender Association, is dedicated to the promotion of fair, humane, and equitable sentencing and confinement decisions for all people in America.

What are the clinical skills of a criminal defense attorney?

They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf.

What is the principle of mitigation?

Mitigation in law is the principle that a party who has suffered loss (from a tort or breach of contract) has to take reasonable action to minimize the amount of the loss suffered.

What is the function of the doctrine of mitigation?

In the UK, Lord Leggatt describes the "function of the doctrine of mitigation" as enabling the law. to distinguish between effects on the claimant's financial position which are to be regarded as caused by the defendant's breach of contract and for which damages can therefore be recovered and effects which are attributed to ...

Is there a duty to mitigate loss?

Iain Drummond notes that in English law there is no duty to mitigate loss. Rather, the principle is that "damages will be limited by an assumption that [a plaintiff] has taken reasonable steps in mitigation of loss", regardless of whether they have not in fact taken such steps.

Can a landlord sue a tenant for breach of contract?

The landlord may be able to sue the tenant for breach of contract: however, the landlord must mitigate damages by making a reasonable attempt to find a replacement tenant for the remainder of the year. The landlord may not simply let the house lie empty for eleven months and then sue the tenant for eleven months' rent.

What is mitigation in criminal justice?

Mitigation seeks to lessen a sentence rather than set a person convicted of a crime free. This means that even if a conviction occurs, hope still exists, especially in cases where the sentence can mean life or death in jail. 4.

What is a mitigation specialist?

Mitigation specialists are not always attorneys. They act as independent experts responsible for information, analysis, testimony, and evidence when a judge or jury is trying to decide how to sentence someone in a criminal case.

What is the process of negotiating a lower sentence?

Mitigation is a process used during negotiation or at sentencing that allows the defendant to effectively present facts about themselves which would lead the court to impose a lower sentence than was first considered.

What does it mean to mitigate something?

verb (used with object), mit·i·gat·ed, mit·i·gat·ing. to lessen in force or intensity, as wrath, grief, harshness, or pain; moderate. to make less severe: to mitigate a punishment. to make (a person, one’s state of mind, disposition, etc.) milder or more gentle; mollify; appease.

What is the principle of mitigation?

In the event of some mishap to the insured property, the insured must take all necessary steps to mitigate or minimize the loss, just as any prudent person would do in those circumstances. If he does not do so, the insurer can avoid the payment of loss attributable to his negligence.

What does it mean to mitigate a claim?

A person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages; that is, to take advantage of any reasonable opportunity he may have had under the circumstances to reduce or minimize the loss or damage. …

What are examples of mitigation?

Examples of mitigation actions are planning and zoning, floodplain protection, property acquisition and relocation, or public outreach projects. Examples of preparedness actions are installing disaster warning systems, purchasing radio communications equipment, or conducting emergency response training.

What is the main purpose of mitigation?

Mitigation actions reduce or eliminate long-term risk and are different from actions taken to prepare for or respond to hazard events. Mitigation activities lessen or eliminate the need for preparedness or response resources in the future.

What is the definition of mitigation techniques?

Mitigation techniques are technologies used in radiocommunications to reduce the likelihood of interference from a radio transmitter to other users.

How is mitigation cost calculated?

Using the same example, the “average mitigation cost” was determined by dividing the total cost by 30 miles, resulting in an average mitigation cost of approximately $500–$833 per mile. For a project with an average right-of-way width of 150 feet, this would be expressed as $28–$46 per acre.

What is a mitigation lawyer?

This article will refer to such lawyers as “mitigation counsel” — lawyers hired to fix a legal problem which has been either created or exacerbated by legal malpractice. Mitigation counsel tries to mitigate the legal malpractice damages by providing legal services which typically will not include suing the lawyer who committed the malpractice. Ordinarily a malpractice plaintiff will have a duty to mitigate damages. Failure to mitigate damages may enable the malpractice defendant to escape liability for damages that the malpractice plaintiff could have avoided thorough the exercise of reasonable care after the malpractice defendant’s alleged misconduct. Examples of mitigation counsel include (1) an appellate lawyer hired to prosecute an appeal after attorney negligence led to a bad result at the trial level; (2) a litigator hired to defend a judgment enforcement proceeding after attorney negligence led to an adverse judgment; (3) a tax lawyer hired after negligent transactional advice led to a corporate transaction being structured with an unforeseen tax consequence; (4) a transactional lawyer hired to re-negotiate documents which were negligently drafted or the product of negligent advice; and (5) a litigator hired to litigate a commercial dispute where attorney negligence in drafting the underlying contracts led to the dispute. As the above examples show, mitigation counsel span a broad array of the legal profession. Often the mitigation counsel is not a litigator, and even the ones who litigate usually have limited understanding of how their efforts may impact a legal malpractice case. Agreeing to serve as mitigation counsel poses unique challenges for lawyers. Like every lawyer, mitigation counsel must comply with the Rules of Professional Conduct and attempt to secure a good result for the client. But since by definition mitigation counsel is retained in the aftermath of legal malpractice, mitigation counsel must be wary of a potential legal malpractice case and the possibility of it being brought into the case by either side of the dispute. Mitigation counsel therefore must protect their clients’ rights to bring a legal malpractice case against the negligent lawyer while employing sensible risk management techniques to avoid becoming a party in the lawsuit. The following six practice pointers will help.

Can a lawyer help a client with legal malpractice?

It is only natural for lawyers to want to help clients any way that they can within the bounds of the law. And clients would generally prefer to hire and pay one lawyer rather than two, especially for the same problem. To save money and hassle some clients will hire the same lawyer to both mitigate the legal malpractice and bring a lawsuit for legal malpractice damages against the negligent lawyer. This is almost always a bad idea. Lawyers sued for legal malpractice often contend that, whatever their mistake, the lawyer who came in afterwards had ample time and opportunity to fix the problem and either failed to do so, or made the problem worse. Sometimes mitigation counsel is brought into the legal malpractice case by the defendant attorney as a third-party defendant. Other times the defendant attorney simply pleads that the Plaintiff did not mitigate damages and then seeks the testimony of the mitigation counsel. An attorney who tries to mitigate legal malpractice is never immune from such an accusation, but it becomes much more likely that an attorney will be brought in as a third party defendant, or at least a witness, if the mitigation counsel is also the client’s legal malpractice attorney. The attorney who wears both hats becomes a very tempting target to become a third party defendant because the attorney cannot continue the legal malpractice representation if he is also a third party defendant. Even if the attorney is not sued, he may be disqualified if that attorney is a witness to underlying events. Under NY Rule of Professional Conduct 3.7, colloquially known as the “Advocate-Witness Rule,” an attorney usually cannot represent a client in a case where an attorney is likely to be a witness on a significant, contested issue of fact. And even if the argument for disqualification under the Advocate-Witness Rule is a weak one, defense attorneys who wish to find more palatable adversaries, or simply cause disruption and delay, may file motions to disqualify. Moreover, legal malpractice plaintiffs may want the mitigation counsel to testify on certain issues. For example, plaintiffs will usually seek the legal fees of mitigation counsel as damages in the legal malpractice case, and mitigation counsel may need to shed light on why certain expenditures were necessary. The Advocate-Witness rule does contain an exception that allows counsel to testify where the testimony relates solely to legal fees. But the testimony is generally more credible coming from a witness who is not the plaintiffs’ lawyer. There are also potential conflicts of interest. For example, mitigation counsel typically works on an hourly or fixed-fee basis. Legal malpractice plaintiffs’ lawyers are more likely to have at least some success/contingency fee component in their fee agreements. The success of a mitigation counsel in lessening the damages of legal malpractice will lessen the value of a legal malpractice case. This poses both the perception and the reality of a conflicted attorney when that attorney wears both hats but is compensated on a partial or full contingency for the legal malpractice case.

Can you recover legal malpractice fees?

(By contrast, clients usually cannot recover the legal fees they have paid to legal malpractice counsel). This is true regardless of whether and to what extent mitigating counsel was able to help the client. Defense counsel often challenge the propriety and reasonableness of the fees incurred by a plaintiff who has hired a mitigating counsel. If such fees are substantial, the claimed legal fees are likely to be a key issue in the legal malpractice case. Defense lawyers are also likely to suggest that some of the fees were not related to fixing the alleged legal malpractice. Mitigating counsel should be aware from day one that their legal fees may be front and center of a contested court proceeding. Some lawyers are used to having their fees scrutinized by courts, but for others, it will be a first-time experience. Either way, the importance of keeping detailed contemporaneous time records cannot be overstated. The time records should explain not only what work is being done but, where ambiguous, why specific tasks are being undertaken.

Can a lawyer be subpoenaed for a legal malpractice case?

Lawyers generally have no obligation to help a former client in a legal malpractice case. On the other hand, the lawyer can be subpoenaed by either side of the dispute to testify at trial and/or deposition, and to provide relevant non-privileged documents. If the legal malpractice plaintiff is a current client of the mitigating lawyer, the lawyer is considered an agent of the client, such that no third-party subpoena will be necessary to obtain the law firm’s responsive documents. A document request directed at a client will require the client to turn over the law firm’s responsive files (minus privileged documents, of course). This will require active cooperation between the client’s legal malpractice lawyer and mitigating counsel. Some lawyers hate being fact witnesses. That is a reason for perhaps not agreeing to serve as mitigation counsel. But when a lawyer agrees to try and fix another lawyer’s legal malpractice, the lawyer should understand that providing documents and live fact testimony in a legal malpractice case is a very real possibility.

What does an experienced litigation attorney do?

An experienced litigation attorney takes the time to coach their clients on what to say in court. Without a legal background, you may not know the difference between speaking honestly and saying too much. It’s your attorney’s responsibility to help you say only what you need to so you don’t incriminate yourself.

How to make a good decision about litigation?

A sure way to make the right decision is to use referrals. Friends and relatives who’ve worked with litigation attorneys may be able to recommend a dependable attorney. It also helps to find out how much experience your potential litigation attorney has.

Why do you need a lawyer for a lawsuit?

One of the biggest reasons to hire a litigation attorney is if the other party in your case has already hired an attorney. If you choose to represent yourself, the other party’s attorney will try to take advantage of your inexperience. Chances are the opposing attorney will fight dirty and do everything to make you incriminate yourself.

Is commercial litigation more expensive than civil litigation?

Generally, commercial litigation tends to be more complex, and cases tend to drag in court for much longer than civil litigation. As you might expect, business litigation attorneys tend to be more expensive than their counterparts.

Can you represent yourself in a lawsuit?

You Get Peace of Mind. Sure, there may be no law against representing yourself when facing a lawsuit. However, most people that choose this route end up regretting it, including attorneys. When you choose to face a lawsuit alone, you put yourself too close to your case.

Do defense lawyers bill hourly?

In most cases, plaintiff lawyers su ing on your behalf will opt for contingency billing, while most defense lawyers bill hourly. Business litigation attorneys may opt for other billing approaches. During your first interview, enquire what billing approach your attorney will use.