From time to time I review legal malpractice cases. Frankly, in the last few years I have only taken a handful, but reviewing these matters is always eye-opening.
Keep in mind that in any legal malpractice case, the plaintiff really has to prove two cases. Proving the negligence of the lawyer is only half of the equation. You also have to show that most likely you would have prevailed in the underlying case – the one the lawyer messed up. Here is a simple example: A lawyer fails to file a case within the applicable statute of limitations. That is clear negligence. However, if the case was one that was nonviable, meaning the plaintiff was unlikely to prevail, then there really is no legal malpractice case despite the glaring error of the lawyer.
This week we reviewed a matter where the person who was referred to us was very unhappy, quite understandably so. Apropos of my example above, the lawyer had blown a filing deadline and any case was now barred by the statute of limitations. However, the underlying case was at best very weak, both factually and legally.
Unfortunately, the lawyer didn’t talk with his client. She was in the dark. Sometimes we try to help clients by taking on a case that may be a stretch. That may be what happened here, but the file doesn’t show that. If you are going to represent a client in a long shot matter, that needs to be explained. Likewise, the decision not to refile the case after taking a voluntary dismissal might well have been reasonable considering the weakness of the case. Again, the file from the lawyer didn’t shed any light on his analysis and/or what he told the client.
Clients need to understand what is happening in their case. They need and deserve the lawyer’s honest assessments. And the lawyer’s file needs to document accordingly. Documentation is a pain, but it’s necessary, especially in any circumstance where you are taking actions that impact that person’s substantive rights.
My message to lawyers is obvious. But I also have a message for clients and prospective clients: Insist your lawyer keep you informed. Be unhappy if they don’t. And if they refuse to communicate, think about finding another lawyer.
I declined the case I just reviewed, but the prospective client got a fairly detailed letter from us telling her why we were doing so. She deserved to know.