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There is no such thing as a slam-dunk legal malpractice case

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death

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No legal case is ever a slam dunk.Law professors are fond of reciting a question about anyone that makes assumptions. They write “assume” on the board and divide it up saying, “When you assume you make an ass of u and me.” Keep that in mind as we talk today.

I’m being asked a question about a claim for legal malpractice. He’s a little too sure of himself and I suspect that is because now he realizes he made a mistake in choosing his lawyer and may not have any case left; not even a legal malpractice case, although maybe he never did. Today I’ll let this potential client describe the fact detail, because in his description is an attitude that I believe is counterproductive and it tells me something about whether I should even consider the case. There are presumptions in what he says that come across as arrogant; but maybe that’s just his way of hiding insecurity. I underlined a few of his assumptions; these are assumptions no one is able to make without the benefit of discovery. Let’s get right to it.

Question: Is it possible to find an attorney who would provide representation for a legal malpractice case on a contingency fee basis?
Fact Detail: All the components necessary to pursue such a case are involved. There are even civil right issues that add to the depth of the case. It would be a large award (limited only by the defendant-attorney's malpractice insurance. I have plenty of credible and professional witnesses.

Answer: The quick answer is yes lawyers handling legal malpractice cases do employ contingent fee agreements; but that's not even close to the difficulty in finding a lawyer to pursue such a case and then being able to win. Legal malpractice cases are notoriously difficult to win; not impossible but extremely difficult. You may wonder why. I’d suggest you consider it’s a case in a case.

But let me get back to this potential client.

You’re getting ahead of yourself. People who come to me boasting about what a great case they have are usually looking for an attorney who is naïve and takes the bait of wanting to jump onboard before this fish gets away. Trust me when I say I’m not one of them and be forewarned that you don’t want to hire one. If you did you’re making the same mistake you probably did in the first case. Here is why.

In a legal malpractice case you have two cases to prove and to win. You need two sets of experts and therefore twice as much litigation expense and time involved. These are not just difficult cases, but extremely difficult, which is why the contingent fee is higher; usually 40 to 50%. The client's complaint is mostly always the same: The attorney was an incompetent fool who botched my case. Just think about that statement for a moment and let’s assume you’re correct. You hired a lousy attorney; the lousy attorney didn't know what they were doing. Didn't know what they were doing from the start; meaning they don't even know what a good case looks like. Am I now supposed to assume this case, your case, was the one good case this lawyer was lucky enough to get hired to pursue and simply botched it? No case is easy so why was your case so easy and therefore so much more valuable?

What are the underlying facts? You never mentioned any fact of the underlying case so there is nothing for me to go on. What about your assessment, can I rely on to determine your case has any merit? What is the case about? Was it a car accident or a premise liability case, a contract dispute or some other legal matter?

But let’s get back to the “mistake”. What was the mistake and why do you think the lawyer blew the representation? I can’t just take your word for it, I need to know facts and then to apply legal standards of how cases are normally prepared. Again, what was his mistake that you believe hurt your chances of winning the underlying case?

And what about your ability to appreciate what it takes to have committed a legal mistake? Why should I believe you when you say the lawyer made a mistake? I’m not protecting that lawyer; I’m protecting my own pocket book by not trying to waste my time and money chasing rainbows.

If you weren’t wise enough to know this attorney shouldn’t be hired to pursue what you thought was a valuable claim, why should I believe you now. Probably you didn’t know what you were doing and there’s nothing wrong with that, because most laypeople don’t. But as a lawyer I’m not going to rely on what a layperson says is a good case. Why? Because they don’t know what a good case looks like. A lot of people watch a few TV shows and think it’s easy. It’s not easy to be a trial lawyer and it takes years of learning before you can do it well. So back to the pending question, what’s the legal mistake you believe the lawyer committed?

And what about the statute of limitations period affecting the underlying claim; have you considered the impact of that problem? Because you need to; probably the statute of limitation period has run so if you don’t have legal malpractice then you have no claim. That means the first step (hurdle if you will) is evidence the lawyer did something wrong (failed to meet the standard of care in the legal community) and as a direct result you’ve been harmed (the underlying case was negatively impacted). To be negatively impacted you will have to prove the underlying case was winnable and that you would have been awarded damages. Not sounding real easy is it? I’ll bet you’re thinking, this is tough and the answer is yes, it is tougher than most people think.

Assuming we get by this hurdle we then will need to examine what was and what was not done to prepare the case for trial. Remember you hired what you now believe is a naive lawyer who attempted to put the case together while not understanding of what they needed to do to assemble the right evidence. So, think about what that says to us. There is no way the case was properly investigated or evaluated. That probably means you had a lousy case to begin with. Lawyers who find themselves knee deep in pig poop usually don’t want to admit it, instead they fool themselves and the client about the value of the case. To admit the case sucks usually means admitting they didn’t understand how to pick a good one. So let’s go two steps back because from the legal malpractice cases I've looked at this usually translates into the underlying case not being put together correctly and this creates all sorts of challenges when 4 or more years later the real trial lawyer attempts to put together not just one case, but two cases. So let’s start evaluating the underlying case with the idea some evidence will be missing. Our primary goal is to determine if the underlying case was viable and if so what it was worth. That’s not going to be easy for several reasons.

First, remember, the evidence hasn't been preserved; the evidence that is there is usually defective in some way, screwed up and might as well be buried with Davie Jones because your about as likely to now be able to put a case together as finding gold coins at the bottom of the ocean. Impossible? No, not by any means, but hard to reengineer at this point. This is why when you first choose a lawyer you should choose carefully. Better to hear from a good lawyer you have no case, then four years later to be chasing rainbows painted by an inexperienced one. No one wants to admit they were wrong, and in litigation it’s even harder because so much money had been spent preparing it. It’s like a stock you bought that immediately tanked, and when the price headed south it’s very difficult to sell at a loss. Instead you hold on hoping the price will rise again. But tomorrow comes and the price stays down so you talk to yourself convincing your ego tomorrow will be different. In litigation better to say “this case is not winnable” than to spend time, money and energy chasing a dream that doesn’t exist and never will, no matter how much you want to believe it will. And that’s where we are at today.

Today is that tomorrow and you come along telling me it's a great case. But is it such a great case? If you hired a lousy lawyer to begin with why should I now think you know any more than you did over the past three or four years? Remember it was you that stood by watching the lawyer (you now say is incompetent) screw up what you say is a good case. How did you suddenly know what he and you were supposed to be doing then? Stop making assumptions and start being realistic by telling me the facts and nothing but the facts.

My point is not to goad you into an argument, but to make you understand no legal malpractice case is easy, a slam dunk or one that suddenly turns into a multi-million lottery ticket. So to answer your first question, yes, there are legal malpractice lawyers working on contingent fee cases, but no it's probably not as easy a win as you think. Get a copy of the file and see an experienced lawyer with years of fighting in the litigation trenches. Those with years of experience aren’t the easiest people to talk with, but they do know what they are doing. As we say at Lombardi Law Firm, we strive to tell you what you need to hear, not necessarily what you want to hear. 

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