PointofLaw.com wonders why more lawyers don’t get sued after losing a case:
The fascinating thing is that lawyers are never subject to that level of second-guessing. In any given litigation, one or both sides to the dispute ends up with less than an optimal result. In any given litigation, both sides’ litigation decisions can be second-guessed. Yet, even with hundreds of millions of dollars at stake, one almost never sees legal malpractice claims in a lost or settled case: no client protests that a deponent could have been prepared better; that a cross-examination should have been more (or less) aggressive; that the attorney’s brief-writing failed to present arguments as clearly as it could have; that an opening or closing argument was too dry for the jury; that a settlement failed to extract the maximum possible value; that the law firm’s failure to have a client’s discovery ready when it filed a suit in a rocket docket alienated a judge that then made adverse rulings. And, unlike a complex surgery, there’s a court record of just about all of these things to precisely focus such second-guessing.
Related posts:
- Doctors sue their lawyers after a malpractice loss
- Malpractice defense lawyers: Do they lead physicians astray?
- Doctors and malpractice lawyers working together?
- Lawyers in the ER
- How malpractice suits affect physicians
- Doctors and lawyers agree on a malpractice bill
- Going bare
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{ 24 comments }
Point of Law is undermining their attempts at being the high end version of Overlawyered with this.
I think there should be managed care for the legal profession…..
It is immunity for lawyers
Anonymous 11:13, do you not think lawyers work for insurers too?
Where would you find a sympathetic judge? Or even a lawyer that would take the case?
There are many lawyers who specialize in legal malpractice. And why wouldn’t they? Most of the cases settle, there is usually plenty of coverage, and when there isn’t, part of all attorney’s bar dues typically go to a victims of legal malpractice fund to help pay.
Point of Law probably has no clue how many cases are filed against lawyers. The dearth of reliable statistics on that issue is probably even greater than that of reliable statistics for med mal.
Of course, considering physicians ignore even the reliable ones for med mal when they don’t say what they want them to, what is the point of putting them out there anyway?
If you could give an example, I’m quite certain that would be a winner on this blog; the lawyers would like it (”see? we have malpractice cases too”) and the doctors would too (”yeah; they deserve it”); so please give us reference to a legal malpractice case?
http://www.law.com/jsp/article.jsp?id=1088699794012
Here is something I don’t understand. I recently had a hearing with representatives of both sides present. Prior to the beginnings everyone had to take our “Oaths” of truth telling. All except my attorney. Every time he spoke he had to start with ” I did not take the oath.” This made me very uncomfortable. It felt like a strike against us from the get go. Like he was somehow advertising he was going to lie and had some right to do so.
Why do attorneys not take these Oaths?
What kind of hearing was this?
All attorneys take an oath to the Court when they are licensed. We don’t take oaths in trials because we are not giving evidence. We are merely eliciting it from the witnesses. Our Rules of Professional Responsibility keep us from eliciting testimony we KNOW to be false.
how many states are like MO and require malice to be shown in legal malpractice instead of just negligence. should doctors be immune from negligence as well and MALpractice be limited to MALice?
mt
“how many states are like MO and require malice to be shown in legal malpractice instead of just negligence. should doctors be immune from negligence as well and MALpractice be limited to MALice?”
To take a linguistic approach to this (I’m neither a doctor nor a lawyer), “mal” by definition simply means “bad” — so “malpractice” is the equivalent of “bad practice”, and doesn’t distinguish linguistically between negligence or deliberate intent to do harm.
Legally, I don’t know how you’d differentiate the two from the plaintiff’s perspective, and I seriously doubt many medical practitioners act out of malice. Fatigue, carelessness, lack of training perhaps…just plain nastiness, I doubt it.
The difficulties encountered in filing legal malpractice is Affirmative Action for lawyers.
I make critical decisions all day long with incomplete information often simultaneously with up to 10 other patients. The lawyer then gets months to years to second guess me and still doesn’t get it right.
I just don’t understand how the performance of the plaintiff’s attorney on the case of the Down’s Syndrome patient dying after undertgoin tonsillectomy (as posted recently on your weblog) could possibly be contrued as anything BUT legal malpractice. When I posted the same comment on that thread I didn’t get back any comment from our customarily brilliant and loquacious legal friends who frequently post on this site.
I don’t understand how you can judge the performance of a multi day legal case based on a post on this site anymore than you can judge a physician from reading a newspaper report of a surgery.
And I’d guess you don’t understand the standard for legal malpractice. After all, most physicians don’t even know the standard for medical malpractice.
Do you?
I didn’t say there were no legal malpractice suits. I said lawyers don’t get sued on the discretionary judgment calls doctors get sued on.
That July 2004 malpractice verdict Anonymous points to–where the lawyers wrote a deliberately false letter to its client to the benefit of another client–was the lawyer equivalent of Dr. Defendant telling a patient that he didn’t need chemotherapy for his treatable cancer because the doctor wanted to sell him sugar pills that he deliberately falsely told the patient would cure his cancer. I think even the doctors here would agree that should be actionable.
The hearing I was refering to was with an ALJ. At this hearing everyone was sworn in at the same time. “Raise your right hand and repeat these words” Everyone in the room did so except my attorney. It all turned out alright and I won the hearing, but, why is it that he didn’t say the “Oath?” He didn’t tell any lies but by him refusing to take the oath and having to start each senteence with “I didn’t take the oath” would lead weight to the fact he might have been lying.
Ted, no one claims you said there were no malpractice suits. What you said was “Yet, even with hundreds of millions of dollars at stake, one almost never sees legal malpractice claims in a lost or settled case.”
The only comment that was made was that the fact you don’t is not really surprising, given how few stats are kept of any different types of lawsuits. You were trying to make a point to further your cause, but really had no factual basis. Which is fine. The truth is, unless you’ve done some survey of legal malpractice claims, you have no idea what kinds of actions lead to legal malpractice claims.
“He didn’t tell any lies but by him refusing to take the oath and having to start each senteence with “I didn’t take the oath” would lead weight to the fact he might have been lying.”
Sounds like a poor way to start, I agree.
Anon 7:36 I know the specialty I practice and on that basis alone I know that the patietnt in the Down’s Syndrome case was not represented adequazely. I know my medicine Do YOU??
Any self-respecting otolaryngologist or anesthesiologist could tell you that this patient should NOT have been operated on in an outpatient surgical center given the underlying co-morbidities. That the family’s fool of a lawyer couldn’t figure out that THAT was the strategy to pursue to get the family justice (that’s what it’s all about anyway ISN’T IT??) rather than the ludicrous one of harping on the morphine dosing in the recovery room, proves how incompetent he was. Why aren’t any of you legal beagles out there demanding this idiot’s head??
Of course, since, again, you read a NEWSPAPER ARTICLE about the case, as opposed to the hundreds of pages of trial testimony, you still have no clue what evidence was or was not put on. Maybe they did put that evidence on and the defendant physician put on an expert who said otherwise. If it was so clear, don’t you think the defendant, his insurer, or his experts would have recognized this and offered to settle?
Or maybe you can read minds? If so, then that’s pretty cool. I applaud you for that. If not, you’re basically mouthing off about a case you know nothing about.
As for why other lawyers wouldn’t be after him, two reasons. One, we haven’t read the transcript either – novel idea, knowing the facts, eh? And two, it’s not our claim – it’s the family’s.
Perhaps your uninformed outrage will serve a greater purpose, though. Can we count on you to contact plaintiff’s attorneys in your area and let them know you’re available to review medical records in their cases?
Once again: You know the law, I know medicine. Aren’t you guys the ones who harp on about res ipsa loquitur? This case is so BLOODY ovbvious to anyone with half a brain that it SCREAMS legal malpractice. But you prefer to stick up for the inpcompetents in your field while hurling criticism at doctors for supposedly covering up for theirs. I don’t have to read reams of paper to know the fact which you simply choose to ignore:. The setting in which this was done was inapproriate for this patient due to the co-morbidities, PERIOD. All else followed from that, not the idiot plainitif’s attorney’s brainstorm about the morphine dosages. This guy ignored the elephant under the carpet while trying to make a case that the flea therein was the cause of the huge stench. Case closed.
Um, lawyers DO get sued. All the time. In fact, my weekly (note: weekly, not monthly or yearly) mass. lawyer paper always multiple contains summaries of lawyer discipline.
In reality, it’s harder to win a legal malpractice suit than a medical one. That’s not because of any vast conspiracy, though. It’s merely that there’s a LOT more flexibility in “how to try a case” than in “How to treat a pulmonary emobolism.”
Some truly amazing legal minds use very different tactics. So there’s much less of a “standard” to work from.
There’s also the causation element. Just like in a medmal case: it’s nto enough that you did something wrong. You also have to caused the harm BECAUSE of what you did. So you essentially need to prove that you “would have won” if the lawyer hadn’t fucked up.
Obviously, this is very difficult to do.
Finally: lawyers settle. If we’re wrong, we usually know it. So fewer cases against lawyers tend to go to trial in any event.
If a client is unhappy, they usually just refuse to pay the lawyer. And guess what? It’s INCREDIBLY difficult to win a case against your own client for that sort of thing, even if you DID do a good job and even if your client DID deserve the bad outcome. Plus it’s a PR nightmare for obvious reasons. So you just let it slide.
HMMM. So there is no standards. No guidelines. The very things lawyers keep harping for on this blog.
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