Placing Blame and Sharing the Pain: Contributory Negligence, Comparative Fault and Apportionment

Should counsel defending a legal malpractice litigation use the doctrine of comparative fault to point a finger at someone else? How can counsel use the doctrine to the client’s advantage while avoiding the potentially negative effects? A panel tackled these questions Sept. 22 at the ABA Fall 2016 National Legal Malpractice Conference.

Comparative Fault Today.

David Atkins identified comparative fault as the doctrine that has replaced contributory negligence. He’s a member at Pullman & Comley LLC in Bridgeport, Conn.

Atkins said contributory negligence is an “ancient” rule of law that has been almost entirely abolished in every jurisdiction. The doctrine precluded a plaintiff from any form of recovery if that plaintiff was found to be at fault in any way, even if the fault was considered insubstantial, Atkins said.

Most jurisdictions now employ comparative fault—which apportions fault among two or more parties—but there are important variations on this doctrine, he said.

Atkins pointed out that some jurisdictions still bar recovery depending on the how much fault is assigned to the plaintiff. In some states, a plaintiff can’t recover if the plaintiff’s fault is equal to or exceeds the percentage of fault for each defendant. In other states, the plaintiff can’t recover if the plaintiff’s fault merely exceeds each defendant’s percentage of fault.

The panel unanimously agreed that the decision to plead comparative fault does not differ for bench versus jury trials. Plead comparative fault when you can, they recommended.

I Was Long Gone.

The panel said to consider pleading comparative fault when successor counsel made a mistake that resulted in the loss, exacerbated the loss, or failed to cure an error to avoid the loss.

Jocelin Singer said that while bringing successor counsel into the suit could increase expense and negatively affect professional relationships, “the goal is still to provide the best defense to the insured.” Singer is a claims consultant at lawyer’s professional liability insurer CNA.

She said insurers must be careful when weighing in on strategy calls like whether to bring successor counsel into the suit. To avoid conflicts, an insurer might need to separate a matter to different adjusters and place “walls” between them.

Panelist Noah Fiedler said the “goal is to make the pitch to shift 100 percent liability to successor counsel,” but make sure the client understands a total shift is highly unlikely. Fiedler is a partner at Hinshaw & Culbertson LLP in Milwaukee.

The panel noted that some states say public policy precludes pleading comparative fault against successor counsel. Reasons include (i) that the specter of comparative fault could make it hard for a client to find replacement counsel; (ii) the successor attorney may face a conflict in having to choose between the client and minimizing predecessor counsel’s liability; and (iii) successor counsel would be unable to use privileged information to defend himself unless the client waived the privilege.

The panel said none of these concerns were convincing. Other courts have found that public policy cuts the other way, according to Atkins, referring to cases that found protection of successor counsel would immunize them from being held accountable for wrongdoing or self dealing.

Don’t Look at Us.

What about pointing the finger at a third party who might have caused the loss? The panelists agreed that it’s a good idea to plead comparative fault in such a case.

But this doesn’t necessarily require bringing the third party into the suit. Some states let you “point to an empty chair” when assigning blame, although others don’t, the Melissa Lessell noted. Lessell stated that she uses the empty chair approach to her advantage in her practice due to the options it provides.

The panel endorsed the “empty chair” approach when bringing the third party in would hurt the client’s case. But if the party’s interests align with the clients, it can help to have that party share in the burden of defense, Fiedler said.

Another key consideration is whether third party’s presence would increase overall damages or the client’s share of them, Atkins said. The decision could hinge on whether the state provides for joint or solidary obligations.

Turning the Tables.

Though it’s possible to blame the client for the loss, Atkins said, doing so is ”typically problematic.” Juries tend to sympathize with the client and tend to hold the attorney to a higher standard of conduct, the panel agreed.

But blaming a particularly sophisticated client might make sense, Atkins said.

Fiedler identified four instances in which courts find comparative fault is properly claimed against the plaintiff: (i) the client failed to supervise the attorney’s work; (ii) the client refused to follow the attorney’s advice; (iii) the client failed to provide the attorney with essential information; and (iv) the client hindered the representation.

Singer also issued a word of warning: filing a suit to collect attorney fees is almost a guarantee that the client will sue the attorney for legal malpractice. So it’s best to wait for the statute of limitations to run on legal malpractice claims before bringing a suit to collect fees if the jurisdiction allows, she said.