Mediating the Professional Liability Matter
It’s another busy day at the office. You are juggling clients, discovery, brief writing and conflicts checks for an influx of potential new clients not to mention entering your billing and tackling other administrative tasks piling up on your desk. And, all the while, your phone is ringing off the hook. The last thing you need or want to deal with is a current or former client bringing a claim against you. Unfortunately, it happens. And when it does, do not panic. Indeed, it is important to be educated on the process and know strategically what is in your best interest in terms of the value of your time and the emotional toll a malpractice claim or lawsuit can take. One great option for resolving a legal malpractice claim or lawsuit is mediation. This is true as long as you select the proper mediator with the knowledge and experience to reach the best result.
Legal malpractice cases can be tricky. That is why it is critical to ensure you select a mediator that is knowledgeable in this area and understands the intricacies involved in the “case-within-a-case” structure for proving or defending the case. Selecting the right mediator with knowledge on both sides of the litigation “v” can make all the difference. A mediator who is knowledgeable in professional liability will evaluate the case and determine whether the evidence is there or not and encourage the parties accordingly to reach a fair and equitable resolution.
In any legal malpractice claim, four elements must be proven: (1) a professional duty owed; (2) a deviation below the applicable standard of care in that practice area; (3) proximate causation; and (3) damages. Oftentimes, the causation element is the prong that becomes the most challenging for plaintiffs to prove. The causation standard is “but for” the attorney’s action (or inaction) in the underlying matter, the outcome would have been different. This requires a plaintiff to prove the case-within-a-case. This is a difficult element to prove because it cannot be based on speculation or conjecture. There must be sufficient evidence that but for the attorney’s actions, the outcome in the underlying matter would have been different. Because of the multi-layer analysis, defenses to legal malpractice claims are plentiful. Mediators experienced with these types of cases understand these points and are skilled at evaluating the case-within-a-case.
The mediator who undertakes a legal malpractice case, must evaluate both the professional liability claim and the underlying matter. The “but for” standard discussed above makes mediation of these types of cases more complicated as a result of the multiple fact patterns that run parallel. Mediators who are experienced in this area are familiar with these assessments and skilled at discovering the strengths and the weaknesses in both the professional liability claim and the underlying matter. This approach allows the mediator to make their assessments, ask questions of counsel representing the parties, and navigate the mediation to a fair resolution.
There are many challenges presented by the case-within-a-case standard. For example, more so than in other types of cases, the evidence can become stale and difficult to obtain because of the passage of time. Unhappy clients are often motivated by factors that cloud the liability picture and give them an inaccurate sense of whether there actually was a breach of the standard of care by their attorney. The former client can be so angry about their circumstances that they fail to acknowledge that the underlying case may have had problems regardless of what actions the attorney allegedly took or didn’t take. On the flip side, the attorney will have the tactical advantage of having the knowledge of the merits of the underlying case from both her perspective as well as the perspective of the client. Another consideration in these types of cases is the cost involved. One must consider the expense of essentially having to litigate and try two cases in one. This factor can prove to be cost prohibitive, particularly when the defendant attorney is not feeling any immediate financial pressure because he is likely being defended by her professional liability carrier. The time away from practice and the lost opportunity costs are also important to consider when thinking about mediation.
When you look at all of the factors discussed above, combined with the complex and dynamic nature of these types of claims, mediation can become appealing when using the right mediator. The attorneys at Chandler Law are experienced with litigating and mediating these types of claims which are driven by the case-within-a-case analysis. Please feel free to reach out with any questions.
