Litigating Legal Malpractice Claims Against Inexperienced Opposing Counsel

Legal malpractice claims by unsophisticated former clients, whether pro se or represented by attorneys who are inexperienced in handling legal malpractice matters, create unique challenges for defense counsel. Brent Baldwin, managing0aAttorney of The Baldwin Group in St. Louis, Missouri; Allison Cave, vice president of claims, Oklahoma Lawyers Mutual; and Bryan Jordan, managing director of professional liability claims, Travelers, discussed common challenges presented by inexperienced plaintiff’s counsel and pro se litigants and suggested strategies to address those challenges during the ABA’s Spring 2018 National Legal Malpractice Conference in Washington, D.C. on April 26, 2018.

Pre-Suit

Defense counsel should engage the carrier’s claims professional early to gauge expectations for a legal malpractice matter. Baldwin suggested that counsel should continue meeting or communicating with the claims professional often and include the insured attorney defendant where feasible, to ensure all interested persons are informed of relevant developments and information. Those communications can also get the insurer and insured to reach an agreement on an overall strategy and timetable.

Jordan said a common challenge is that inexperienced counsel often view legal malpractice claims as a lottery ticket, overvaluing their clients’ claims with eyes toward massive amounts of non-economic damages, disgorgement of fees, etc. That miscalculation leads to unrealistic expectations on the part of the client. Both inexperienced counsel and pro se plaintiffs expect that their case is made simply because the attorney defendant made a mistake. They often ignore that they must prove that the attorney defendant’s mistake caused damages to the plaintiff.

Another frequent challenge affecting early case evaluation and resolution is the tendency of inexperienced counsel and pro se malpractice plaintiffs to hold hostage the file maintained by the malpractice defendant. Without that vital information, carriers and defense counsel do not have enough information to resolve the plaintiff’s claim. Defense counsel’s pre-suit communications with the inexperienced plaintiff’s counsel or pro se plaintiff should focus in part on enlisting their support and cooperation in gathering needed information, emphasizing that it is in the best interests of the parties to have as much information as possible regarding the plaintiff’s claims.

When dealing with inexperienced counsel and pro se plaintiffs, defense counsel also struggle to balance their need to obtain important information from the plaintiff with the risk of educating the plaintiff regarding her cause of action. The very nature of the requests defense counsel makes to the plaintiff can prolong the litigation by informing the plaintiff of information she needs to establish her case. Defense counsel must take care to craft their requests in a way that obtains necessary information while minimizing the educational effect on inexperienced counsel or pro se plaintiffs.

Not all education of inexperienced counsel or pro se plaintiffs is detrimental to the defense, however. Legal malpractice plaintiffs commonly create coverage issues by pleading claims for fraud or other intentional torts without realizing that such claims are not covered by professional liability insurance. Those claims produce challenges for defense counsel from the outset of the dispute. Some plaintiffs are motivated by emotions or are well-funded and are not pursuing claims against the attorney defendant for financial reasons. Other plaintiffs may rethink their claims with an eye toward remaining within available insurance coverage. Defense counsel must also make clear to their attorney clients that counsel is not coverage counsel and is not involved in any dispute between the insured and the carrier regarding coverage.

Defense counsel can overcome some pre-suit challenges by conducting a preliminary investigation into liability and damages. Carriers usually want damages information as early as possible. That investigation should involve discussions with the plaintiff’s counsel or the pro se plaintiff. Defense counsel’s discussion of damages can encourage cooperation from the malpractice plaintiff.

Before engaging in any settlement discussions, defense counsel should ensure that plaintiff’s counsel has authority from his client to settle the matter. Informal settlement discussions can lead to the erroneous belief that a matter has been settled, creating conflicts between defense counsel, the carrier, and the insured attorney and starting litigation on a bad note when it is discovered that the plaintiff did not authorize her counsel to settle the matter.

In-Suit Generally

After the plaintiff has filed suit, some pre-suit challenges persist and a host of new challenges arise. Cave noted that at this stage carriers, defense counsel, and the insured attorney defendant can have different goals which come with different challenges and strategies.

Legal malpractice defense counsel sometimes must use a heavy hand in managing malpractice defendants who wish to dictate the strategy of their defense. Those defendants are often as inexperienced with legal malpractice cases as the plaintiff’s counsel. Malpractice defense counsel may need to gently, but firmly, remind their attorney client that defense counsel is experienced in this area of the law and that the client is the one who is being sued for malpractice.

Scheduling Orders and Discovery

Defense counsel can be in a difficult position between the carrier and the attorney defendant. Discovery can be an expensive undertaking. Defense counsel must balance the carrier’s desire to minimize costs with the insured attorney defendant’s emotional desire to bury the plaintiff in discovery.

Ever-changing theories of liability and damages are common in legal malpractice cases involving inexperienced counsel and pro se plaintiffs. Those changing theories lead to delays and extensions. Defense counsel should seek entry of a case management or scheduling order with hard deadlines, to force the plaintiff to valuate her case and pursue a defined theory. Defense counsel should be mindful of drafting those orders in a way that educates the unsophisticated plaintiff, for example, the order should not include specific references to expert disclosures if the plaintiff is not aware of the need for expert testimony to prove the duty and breach of duty elements of her cause of action.

Defense counsel can also use discovery requests within the framework established by a scheduling order to tie a plaintiff to a theory of her case. Interrogatories and requests for production regarding specific allegations of all damages and their evidentiary support can limit the expenditure of time and resources that a plaintiff’s changing and/or novel theories require.

Motion Practice

Defense counsel should consider motions to dismiss, particularly in cases where claims are clearly untimely. Statute of limitations issues, however, often involve determination of factual issues, which will result in denial of a motion to dismiss and discovery.

Motions for summary judgment often address a plaintiff’s lack of expert testimony to prove duty and breach of duty, statute of limitations, existence of an attorney-client relationship, causation, and damages. Carriers usually express a desire that defense counsel whittle away the plaintiff’s damages allegations at the summary judgment stage.

Motions in limine can weaken the plaintiff’s case on both liability and damages. Prior disciplinary proceedings and malpractice actions may often be excluded as prior bad acts, lessening the chance of jury inflammation. Pro se plaintiffs often seek to prove collateral matters that are relevant to them personally but are irrelevant to their cause of action legally. A motion in limine seeking exclusion of those matters can keep extraneous, often inflammatory matters from the jury.

Depending on the underlying facts, defense counsel should consider a motion to bifurcate trial of the issues of liability (the “case within a case”) from damages, especially if the plaintiff seeks punitive or exemplary damages. Bifurcation can keep issues such as gross negligence from coloring the jury’s deliberations while it considers whether any malpractice occurred.

Mediation

Carriers often want to engage early in mediation of legal malpractice claims involving inexperienced counsel or pro se plaintiffs. Jordan noted that early mediation can benefit carriers and insured attorney defendants by having a disinterested third party educate the plaintiff on any weaknesses of her claims, the problems of creating coverage issues by pleading fraud or other intentional torts, and the effect of prolonged litigation on recovery under depleting or eroding insurance policies.

Baldwin stressed that mediator selection is crucial and requires defense counsel to put serious thought into the issue. Defense counsel should evaluate the skills, emotions, and rationality of inexperienced plaintiff’s counsel or the pro se plaintiff in suggesting and selecting a mediator. Will a tough, frank mediator be more appropriate, or do the facts of the case indicate a calm, handholding approach is needed?

The insured attorney defendant is often a barrier to settlement. Conflicts can arise between the carrier and the insured because he believes he did nothing wrong and rejects any mention of settlement. Carriers sometimes must invoke consent to settlement clauses, colloquially referred to as hammer clauses, to encourage a reluctant insured to settle.

Specific Considerations for Pro Se Litigants

When dealing with a pro se plaintiff, defense counsel must identify the plaintiff’s motivators, triggers for irrationality, and the extent of any irrationality. In pre-suit and pre-trial litigation, that information allows defense counsel to evaluate whether and how to reason with the pro se plaintiff. In trial, that information allows defense counsel to use triggers of irrational behavior to demonstrate to the judge and jury any traits which potentially led the plaintiff to the situation where she had to be pro se.

Pro se litigants, by definition, are ordinary, non-attorney people representing themselves. Defense counsel should consider whether a bench trial can better serve his attorney client than a jury trial, given that juries are commonly made up of people like the pro se plaintiff. Juries can be sympathetic to pro se plaintiffs, seeing them as the little man standing up for himself. In cases involving abrasive or unrealistic pro se plaintiffs, however, a jury can become unsympathetic to or annoyed by a pro se litigant’s manner or antics.

To protect themselves and their clients, defense counsel should communicate everything in writing to pro se plaintiffs and insist that pro se plaintiffs do the same.