Identifying and Defending Malpractice Cases Almost Certainly Destined for Trial

Some cases seem “destined” for trial. Whether it be an intractable plaintiff, a righteously indignant defendant, the lawyers representing the parties or some other factor, some professional liability cases against lawyers and law firms seem more likely than others to end up in the courtroom.

At the Fall 2014 ABA National Legal Malpractice Conference, Joseph P. McMonigle of Long & Levit LLP in San Francisco moderated a discussion about identifying and managing cases that seem unlikely or difficult to settle.

His fellow panelists were Thomas J. Brandi of the Brandi Law Firm, San Francisco, providing the plaintiffs’ perspective; Elliot R. Peters of Keker & Van Nest LLP, San Francisco, offering a defense perspective; and Kenneth D. Small of ALAS Inc. in Chicago, providing the insurance carrier’s perspective.

The conference, presented by the ABA Standing Committee on Lawyers’ Professional Liability, was held Sept. 11-12 in San Francisco.

Reluctance to Try Malpractice Cases?

Small indicated that law firm defendants may be reluctant to go to trial in a malpractice case where the stakes or costs of defense are high.

Peters agreed, noting that attorney defendants may lack faith in the trial system. But Peters said he believes attorney defendants are “too reluctant” to defend malpractice claims and more such cases should be tried.

Brandi said he starts with the premise that the cases he litigates will be tried. He noted that today smaller cases are no longer tried, and said he encounters more lawyers with relatively little trial experience who are reluctant to go to trial. Small concurred that it can be hard to find “trial lawyers”—there are plenty of “litigators and strategists,” but many lawyers have less trial experience than should be the case, he said.

What ‘Produces’ a Trial?

Small identified two broad categories of malpractices cases that typically are tried:

• “There’s no there there.” This is when the insurance carrier, defense attorney and lawyer-client all agree that the plaintiff’s case makes little or no sense, or it is clear the lawyer defendant did nothing wrong.
• “Greedy plaintiffs.” These cases have a reasonable settlement value, but the plaintiff is looking for a recovery far above that amount.

Peters added that regardless of the category of malpractice case, it is important to treat each case like it may go to trial. Brandi noted that cases often are tried because of money. That is, a defendant will not settle for enough, or a plaintiff expects too much. There may also be nonmonetary factors, such as one side believing it must “teach the other a lesson.”

Is Mediation Advantageous?

Small told the audience that from an insurer’s perspective, he generally would not recommend early mediation.

Early on, he said, both sides may have unreasonable expectations: the plaintiff may value the case too high, and the defense may not know enough to evaluate the case. Premature, unsuccessful mediation may also make later settlement more difficult if the parties have hardened their positions. An exception might be where both parties know a lot, and the defense already has a thorough assessment of the case.

Having a budget is important for settlement purposes, he said, because the budget will factor into the value of the case. Small also remarked that, in general, lawyers today are less candid in mediation, and it is difficult to ascertain what the parties’ “final” or real settlement numbers really are.

Peters added that mediation requires candor with one’s adversary, which many lawyers are unwilling to do. He said early or pre-suit mediation typically is possible only if there is no defense to liability, such as a blown statute of limitations. In that case, Peters stated, the issues come down to causation and damages, but the attorneys will need to work hard to exchange information.

Brandi observed that there sometimes seem to be “bad faith” mediations, where parties lack authority to settle and are there just for discovery. Nevertheless, Brandi said he believes early mediation can work, but only if the parties are candid.

Getting Ready

Small said in preparing to defend a legal malpractice action he looks for the three “C’s”: completeness, candor and chutzpah.

An accurate evaluation and accurate budget are important, he told the conference attendees. An honest assessment of the case, including the likelihood of prevailing (or losing), damages, and other matters must be provided. The lawyer must be prepared to try the case, rather than backing out at the last minute and recommending settlement contrary to earlier assessments.

Peters agreed that an accurate budget is vital, but can be difficult to estimate. Moving beyond the budget, lawyers must understand there are typically two key witnesses: the former client and the attorney defendant. Counsel must assess these two witnesses. The defendant must also try to develop a simple defense because the more “slicing and dicing” (e.g., trying to explain that the lawyer represented X but not Y), the more the defense must worry that the jury might see the attorney as more broadly responsible for the outcome at issue.

Brandi focused on being aware of three issues in the case: liability, causation and damages. The parties also must know who constitutes the jury, meaning: (a) understand the audience, and (b) know what themes fit the case and how they will play to the audience.

Presenting Themes to Jurors

For Peters, it is essential that the jury grasps the scope of the attorney defendant’s representation and role in the alleged malpractice and harm. The jury must grasp who the client is, what duties the attorney owed, what is the standard of care and what was the scope of the representation. The plaintiff will try to expand the lawyer’s responsibility, and it can be the defense’s role to do just the opposite.

Small said he encourages use of jury consultants or mock juries to help prepare witnesses and to develop and test themes. There is value in testing themes early and often so that going into trial one knows how they will play to the jury or judge, he said.

Brandi confirmed that themes must resonate with the jury and may be derived from common experiences. One of the simplest but most powerful themes, he said, is the poor and powerless exploited by those with superior knowledge or power. People relate to simple themes. The theme also depends on the defendant—a large company with “an ego” will be an easier target than a decent individual who made an honest mistake.

McMonigle observed that the plaintiffs’ bar seems ahead in terms of engaging jury consultants. While a full-blown mock jury may not always be necessary or available, testing themes should be done, he said. Peters concurred, but noted the importance of having a representative (mock) jury pool so that the results are more accurate.

Role of Depositions

Depositions can be the key to trying a malpractice case, according to McMonigle. Attorneys should think about trying the case when taking depositions, he said. Video highlights of depositions can be a powerful tool at trial as well. Moreover, the language chosen by witnesses at deposition (e.g., “No” versus “I don’t recall”) can impact their credibility at trial.

Peters noted that it can be “absolute death” for attorney defendants to rely on the “I don’t recall” response. The jury expects them to be prepared: they must review their file, bills, correspondence and work product, and be able to articulate what happened with authority. The attorney defendant must be able to reconstruct what happened by the time of deposition.

Peters also said he is in favor of early plaintiff depositions, which are more likely to be unfiltered compared to later depositions where the plaintiff may have learned more about the litigation process.

Brandi said he believes an “I don’t recall” response might be fine if it is the truth. But a sophisticated witness cannot rely on that response without losing credibility, he added.

Small observed that there are different standards for plaintiffs and defendants. The jury expects more from attorneys, including that they have reviewed their files and know exactly what happened. Defense counsel must fully prepare their attorney witnesses, Small said.

As for expert witnesses, the panelists seemed to agree that use of experts can create dangers but that the opposing sides’ experts often wash each other out in malpractice cases.

Takeaways

Preparing for trial is important not only for the eventuality of having one’s case heard by a jury or judge, but for enhancing the chance of settlement. Preparation allows counsel to evaluate the case accurately, demonstrate competence to their client and opposing counsel, and develop and test themes.