A double-standard. When it comes to law malpractice, lawyers don’t want it tried in front of a jury:

Law firms have frequently sought to avoid having malpractice claims heard by jurors, who they fear will be unsympathetic.

If lay-juries are “capable of deciding complicated medical cases”, lawyer malpractice should be no different.

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  • Anonymous

    What many physicians don’t understand is that “law firms”, especially ones like Weil Gotschal, typically don’t represent Plaintiffs. They represent people who can pay their $250+/hour fees. They don’t want to be in front of a jury of their peers any more than their clients do.

    The belief that everyone with a law degree has the same political outlook is held only by physicians.

  • Greedy Trial Lawyer

    I agree with your statement that jurors should have as much competence in the area of legal malpractice as in medical malpractice.

    Your reference to “A Double-Standard,” however, runs aground on the reason for the decision of the bankruptcy judge:

    “The law firm had argued against moving the matter out of bankruptcy court to a jury trial in federal district court on the grounds that the claims were related to the core bankruptcy proceedings, including the firm’s request for legal fees. Judge Ronald King agreed and also said the association had waived its right to a jury trial when it filed its Chapter 11 petition.”

    If you are attempting to argue more broadly that legal and medical malpractice claims should be treated more or less equally in our legal system, you will find yourself shipwrecked on a very rocky shore.

    Virtually every state has legislated so many special rules, procedures, impediments, limitations and flat-out obstacles to the prosecution of medical malpractice cases that there is no parity between the claims except that both are civil actions.

    If the playing field were leveled victims of medical misconduct might actually have a fair shot at compensation.

  • ismd

    “Virtually every state has legislated so many special rules, procedures, impediments, limitations and flat-out obstacles to the prosecution of medical malpractice cases that there is no parity between the claims except that both are civil actions.”

    None of those “impediments” exist in the State of New Jersey re: medical malpractice. However, when my attorney screwed up a civil case against my wife and myself, we couldn’t sue him for legal malpractice because NJ doesn’t allow this unless you are financially ruined by legal incompetence.

  • Anonymous

    You have to show resulting harm in medical malpractice as well. However, NJ has the following hurdles for medical malpractice that don’t exist for legal malpractice:

    1. Punitive cap
    2. Collateral Source offset
    3. Expert licensed to perform same act at issue
    4. Two year S/L
    5. Caps on attorney fees – remember that’s just the plaintiff not the defendant. Defendant can pay as much as they want – sounds fair, doesn’t it?
    6. Affidavit of consultation with an expert must be filed
    7. Judge has authority to order the case to alternative dispute resolution.

  • ismd

    NJ does not have a cap on punitive damages. That was shot down in 2003. While there may be a stute of limitations of 2 years for most cases of malpractice, the statute is 11 years for presumed birth injuries. There are no caps on attorney fees in NJ.

  • Anonymous

    Obviously, minors’ limitations period doesn’t run as quick as an adults. Surely you can understand why.

    Good for NJ for striking down punitives, even if they really aren’t a big factor.

    One thing about NJ that hasn’t been discussed is that state law prohibits the raising of premiums if one is dropped from a case within 180 days of filing.

    Also, a health care provider may submit an “affidavit of noninvolvement” stating the facts which they believe indicate they have no relation to the suit. If the plaintiff objects and files a counteraffidavit which is false, then the court can sanction them, including requiring them to pay the other side’s attorney’s fees.

    Can’t confirm the attorney’s fees so far.

    Also, in an effort to help insurers, the state runs a reinsurance fund for those that can’t obtain reinsurance.

    It appears NJ has a lot more protection than most states, however. Perhaps it is time to take a closer look at your carriers.

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