Suing lawyers for professional malpractice is a double-edged sword. It cuts both ways. I know. I do it.
On the one hand, lawyers who sue lawyers probably face less malpractice risk in those cases than almost any other lawyers in other kinds of cases. In light of the fact that successful legal malpractice cases can be very difficult to bring (requiring the malpractice plaintiff to prove “the case within the case” and often presenting substantial challenges on the element of causation), the malpractice plaintiff’s counsel is quite insulated from a charge of malpractice himself because bringing that additional malpractice malpractice case places yet another hurdle before recovery. Undertaking a double-layer malpractice case is past the risk tolerance of almost all lawyers in almost all cases (but it does happen). (And how about suing one’s expert witness (a lawyer) for malpractice in a case where the lawyer is hired to testify on your behalf as an expert opining on malpractice? Sound like a winner to you? Me neither.)
On the other hand, where there might be relative immunity from malpractice claims, maybe there are other forces at work to regulate the regulators, so to speak (because, in a sense, plaintiff’s legal malpractice lawyers serve a function of regulating civil litigators)?
Update (July 22, 2014): The case heads to the jury…
Update (March 21, 2014): Chalk a “win” up on the Minnesota Litigator prediction tally! (See the prediction below and the linked denial of summary judgment for the defendant.) (On second thought, let’s not keep a tally of my predictions and only highlight the ones where I turn out to be right, so you think I am awesome.)
Update (July 22, 2014): If you ask people what the verb “hale” means, you will find very few people know the answer. In a previous post (below), I questioned (tongue-in-cheek) whether it is fair to have courts determine the constitutional limits of personal jurisdiction by inquiring whether a litigant has “a deliberate and substantial connection with Minnesota such that [the litigant] could reasonably anticipate being haled into court here.”
Who anticipates being haled anywhere? No one. Ever. Not these days.
By the way, a synonym for “hale” is “haul.” Who anticipates being physically dragged into court? Again, no one. Ever.
(And, for all of you non-lawyers who have read this far (yes, I mean you, Mom), note that “reasonableness” is a special word for lawyers. The opposite of “reasonably anticipating” is not “unreasonably anticipating” it or “not anticipating” it. The use of the word “reasonable” here changes the analysis from a subjective inquiry (“what did the party actually anticipate?”) to a normative inquiry (“what should a party actually anticipate?”).
And, the truth of it is that parties will always be in doubt in marginal cases. The truth of it is that what a party anticipates has nothing to do with it.
Mess with a bull, you get the horns. Mess with a fox, and I suppose you get the teeth.
Minnesota Litigator has covered the St. Jude case against Biosense and Jose de Castro in several earlier posts (here and here, for instance). Not all the posts have been fawning and complimentary but one must give credit where it is due.
Congratulations for Ed Fox and his team from Bassford Remele on a recent win in this protracted dispute. ANOTHER WIN, that is. (Earlier run-ins with Fox & friends that did not work out well for their adversaries may be noted here and here.)
I am a one-lawyer law firm and I have had four trials over the past four years. Fortunately, I have had co-counsel for all of them. (We didn’t win every trial but I have gone three for four including a $10,000,000 jury verdict.)
Only a fool goes into trial by choice without someone protecting his or her backside. Minnesota solo lawyers would be wise to team up with experienced trial co-counsel in those very rare events when civil cases do not settle before trial. If you’re headed to trial and you’re on your own, call me. We might be able to get the job done and there is no question that you and your client would be better served with back-up rather than going it alone.
What are the barriers to universal acceptance of this common sense advice?