Legal malpractice

On Jun 27, 6:28 pm, phil-news-nos...@ipal.net wrote:

> Suppose a legal firm screws up a client civil case by some mean (pick a
> scenario).  The client might be plaintiff or defendant.  The client loses
> a lot of money, or loses the possibility of collecting a lot of money.
> So the client hires a different law firm and sues the first law firm for
> whatever this could be classified under.

It's called "professional negligence" or "legal malpractice".

> Could the first law firm argue that the client didn't really have a winable
> case to begin with, in order to minimize their damage, and expect such an
> argument to be well considered by the court?

That's exactly what he'd have to do.   A legal malpractice case almost always requires proof of a "case within a case" because the wronged plaintiff in the malpractice case (the defendant lawyer's former client, regardless of whether he was a defendant or a plaintiff in the underlying case) has to prove, as part of his damages case, what kind of result he _would_ have been able to get if the first lawyer had not screwed up, and unless that number has already been reduced to some liquidated amount, the jury in the malpractice case will have to decide what kind of verdict the jury in the underlying case would have awarded and then convert that into a number to award the malpractice plaintiff.

>  Would the client (via its new
> law firm) need to carry out much or all of the arguments of the original
> (lost by default) case just to should would _could_ have been won, or what
> losses _could_ have been avoided?

Yes.   And I might add that, when the defendant in the dock is an incompetent lawyer rather than some equally incompetent but poor and ordinary driver or landlord or small businessman (as in the underlying case), those arguments very often resonate quite a bit better with a jury and lead to even higher damage awards than the same jury might have been willing to award against the other poor zhlub, just because (a) he's a lawyer and (b) he's a lawye who screwed up, even though of course the judge would instruct the jury not to let that play any conscious role in their deliberations.

> What if, in the course of litigating the 2nd case against the first law
> firm, it became obvious from evidence in this case, that was never seen by
> the court in the first case, that the opposing party of the original case
> had been acting in willfully illegal ways that would have triggered either
> extended awards, or possibly even criminal charges?  Can the 1st law firm
> be held liable for those extended awards?  Could this still trigger criminal
> charges agains the original opposing party if it could have had the original
> case gone forward to expose the evidence?

I'm not going to even try to answer that because it made my head hurt to read it.  Way too convoluted for me to make any sense of that scenario.

> Would any of this be different if the 2nd law firm's investigation found
> that the 1st law firm was somehow complicit with the original opposing
> party or its law firm (e.g. a conflict of interest against its client)?

If the first lawyer was knowingly colluding with the other side to act against his own client's interests, that is not negligence (defined as an unreasonable, inadvertent error or oversight that causes harm), rather, it is a breach of the lawyer's fiduciary duty to his client and probably also fraud if he covers it up.   The lawyer who merely screws up even though his heart was in the right place may wind up paying just as much money for the harm he caused (or his insurance will), but the lawyer who knowingly defrauds or cheats his client is likely to also get disbarred and lose his law license.

> Are there situations where a default judgment can be set aside because of
> the misconduct by the losing party's legal representation, even though the
> default winning party had nothing to do with it?

Yes, there are, and if the initial, inadvertent negligence of the first lawyer caused a default or a dismissal, the doctrines of "exhaustion of remedies" as well as "mitigation of damages" would probably require the losing party (the one contemplating suing his lawyer for screwing up) to first give that lawyer every reasonable chance to reverse the ruling and make it right, in which case "no harm, no foul".   Realistically, if the client jumps the gun and fires the first lawyer and brings in the second lawyer to sue the first before that happens, you can betcha the first lawyer (or his malpractice insurer of course) will deny the claim on that grounds and, if the case comes to trial, the defense will argue that the SECOND lawyer screwed things up by not letting the first lawyer finish what he started when he still had a chance to pull his fat out of the fire.

--
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Mike Jacobs
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