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Don't Fear The Courtroom When Fighting Malpractice


Defendant law firms are generally reluctant to let a malpractice case see the inside of a courtroom but there are some instances when they should insist on their day in court, an expert panel said Friday at a conference in San Francisco.

Lawyers with the Brandi Law Firm, Keker & Van Nest LLP and the Attorneys’ Liability Assurance Society told attendees at the American Bar Association’s National Legal Malpractice Conference that law firms should be less afraid of going to the mat in malpractice litigation when there are clear openings for vindication.

“Lawyers are too frightened to try cases on the defense side,” said Keker & Van Nest LLP partner Elliot R. Peters.

Peters said that in his experience as a law firm defense attorney, firms lack faith in the judicial system when targeted by malpractice claims and sometimes lack the support of insurers in cases that likely could be won at trial.

“I treat every case like it’s going to trial,” he said. “Frankly, I wish more of them did. But I think that’s the attitude of most lawyers.”

That’s a frustrating reality for Peters and ALAS senior claims counsel Kenneth D. Small, who said that firms shouldn’t be so quick to settle cases, even when it’s apparent that a mistake was made.

Small said that from his perspective, there are generally two categories of cases that are destined for trial — those involving baseless allegations and cases that have merit but involve inflated damages demands.

The latter scenario seems to crop up most often in “settle-and-sue” cases where a client alleges that they were forced to settle an underlying lawsuit for significantly more or less than the case was worth because of the attorney’s malpractice, according to the expert panel.

Plaintiffs with unreasonable expectations usually don’t back down and a strong defense team that has accurately assessed the case and has the “chutzpah” to see the litigation through to a verdict can walk away with a win, according to Small.

“Generally, if you try those cases, even if you lose, the verdict is [usually] closer to what you thought the damages really were,” Small said.

When a case is a close call in terms of liability, firms should be taking a closer look at witness credibility and themes that could derail the plaintiff’s case, according to Peters. If the defense can put on a persuasive case that jurors understand, trial should be an option, Peters said.

Peters is a fan of taking depositions as early as possible in the litigation, because it ups the odds that the plaintiffs will equivocate or make contradictory claims that can be used against them at trial. The longer depositions are put off, the more opportunity plaintiffs have to get their facts straight and grasp the central legal issues involved, Peters said.

But that also puts pressure on the defendant lawyer to be well prepared, Peters added. Jurors will not forgive a lawyer who comes across as having less than a solid grasp of the facts or worse, appears evasive, he said.

“It’s absolute death for a lawyer to sit there and say ‘I don’t recall,’” Peters said. Thomas J. Brandi of the Brandi Law Firm represents malpractice plaintiffs and said that a lack of credibility can gut a malpractice early, especially if the plaintiff is a sophisticated businessperson.

“Give me a good plaintiff over good facts,” Brandi said.

And if there’s room to characterize the plaintiff’s claims as a money grab that’s out of proportion to the actual damage caused by the lawyer, the greed theme can carry a lot of weight with jurors. But the defendant also has to have a coherent explanation for what happened, Peters said.

“The more backpedaling and slicing and dicing you have to do, the more you have to worry about jurors seeing lawyers as responsible for the outcome,” he said.

Ultimately, winning over jurors in a malpractice case is about marketing and understanding the human condition, Brandi said.

“People really relate to the truth and the telling of the truth,” he said. “It’s a really simple theme.”