How Not to Get Sued

How Not to Get Sued

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How Not to Get Sued
Matthew B. Weisberg
The Legal Intelligencer
March 02, 2011


At some point in your career, you will be sued or threatened with a suit for legal malpractice or wrongful use of civil process, or face some form of sanction.

And because you are a human, you will be accused of making -- or actually make -- a mistake.

The practice of law is unpredictable; an art form exclusively predicated on judgment calls with no guarantee of successful outcome or, even then, a satisfied client. In fact, with these times of financial distress especially impacting our profession in conjunction with growing hyper-procedurality, these risks are heightened.

Just as the medical profession has long realized their "halo" of invincibility has been forsaken, so too has ours -- our practice is based on conflicting interests; it is a foregone conclusion that you will, at some point in your career, become the target.

In the words of this author's former ethics professor, "You are not a real lawyer until you blow the statute of limitations."

Unfortunately, in almost every situation, the claim against you could have been avoided.

PEOPLE DON'T SUE PEOPLE THEY LIKE

Every one of us considers himself well-liked. Unfortunately, that belief is void of self-awareness.

It is not possible "to please all of the people all of the time." Whether it is a particularly vindictive opposing counsel, an ornery judge or an impossible-to-please client, you will become (whether rationally or irrationally) the target of someone's dissatisfaction.

Knowing that you cannot always be liked, what to do?

First, being liked as a professional is not the same as being liked by one's family or friends. To be liked as a professional requires more; tautologically, it requires being perceived as not "the enemy."

How does an attorney do that?

• Return all calls the same day, regardless of whether it be from a third-party, court personnel, opposing counsel, former clients or existing clients.

It is irrelevant that you determine the return call unnecessary, the caller problematic or the subject of conversation counter-productive. To be clear, it is unimportant that you determine the call to be loathsome.

If you cannot personally return the call, have someone do it for you, even if just to merely advise the caller that the call has been received and then to schedule an immediate time for when the call will be substantively returned. It is acceptable to return a call therein replying, "I don't know the answer to your question," "I think it would be better for us to discuss this in person," "I can't answer that question at this stage," or even "I do not think it is appropriate for us to discuss this topic further."

• Be direct.

Even if the subject you are transmitting is unpleasant, be direct. Even if you anticipate a negative reaction, be brutally frank. Vagueness or ambiguity will not only result in wasteful return communications on the same subject matter, but will be deemed an indication of your lack of competence -- and will be remembered.

Advising that a response cannot be given due to described circumstances, is direct. Painting a "rosy picture" is not.

• Be calm and confident.

In our present society, even the meekest have acquired a (perhaps imperceptible) backbone. Responding in kind to an emotional situation or portraying a lack of self-assurance may inspire escalation. After all, by virtue of our profession, we are surrounded by those unafraid to engage.

• Engage on a personal level where appropriate.

Even in the most severe courtrooms, attorneys rise proclaiming, "Good morning, Your Honor." Likewise, there is nothing wrong with wishing your adversary a "good weekend," your client a "happy holiday," or the court a "good day."

That said, over-personalization should be avoided. Remember, no one cares about you.

• Remember.

Remember full names, case details and pertinent events. "Remembering" may be nothing more than computerized tracking. If you do not know, ask. Know your audience and, not less importantly, know yourself. If you have a weakness, acknowledge it. The "fix" may include the implementation of technology, a superior support staffer or even only responding to calls in front of your computer.

REWORK YOUR FEE AGREEMENT

Your fee agreement may include mandatory arbitration, statute of limitations shortening and choice of law provisions, all notwithstanding the traditional fee and scope discussion.

It must also include a memorialization if you do not have liability insurance and it may not include a release or otherwise hold harmless provision.

But it should also include reference to the ability of the client to resort to a bar association's fee dispute committee. And it should not make guaranties nor promises.

In New Jersey, legal malpractice claims have a six-year statute of limitations, are not per se barred by the underlying action's settlement and release, and are fee shifting. Take heed.

RESPOND IN FORM

If a judge issues a written order requiring a rule to show cause hearing, respond in writing vis-à-vis your defense (and then attend the hearing). If a client writes you a hand-written letter, respond with a written letter. If opposing counsel calls, call back. If you receive an e-mail, e-mail in response.

There is nothing wrong with thereafter being more formal in a traditional writing or informal with a call or e-mail, but that should be preceded by a like response to the form of communication.

REPORT ALL 'OCCURRENCES'

If you receive a Dragonetti Act threatening letter, report it to your insurer.

If you receive a pre-litigation notice of a legal malpractice claim, report it to your insurer. If you are subject to sanctions, report it to your insurer. If you make a mistake, report it to your insurer.

If worst comes to worst and you have not reported timely to your insurer, your insurer will first contemplate disclaiming coverage and thereafter perhaps defending you under a reservation of rights. Unlike any other professional insurance, lawyer's professional insurers are not "on your side."

Incidentally, there is no anecdotal evidence that over-reporting "occurrences" increases subsequent premiums.

SEEK HELP

From my experience in prosecuting legal malpractice claims, daily reviewing ethics decisions, and digesting appellate decisions specifically regarding procedural mishaps, solo and then small firm practitioners are most exposed.

It is my belief notwithstanding perhaps other contributing factors, that isolation breeds problems.

If you are suffering from depression, seek a psychiatrist in combination with a therapist. If you are confronted with an ethics dilemma, contact ethics counsel. If you are suffering from a substance abuse addiction, seek Lawyers Concerned for Lawyers in conjunction with a 12-step program.

If you are simply confronted with a question regarding a local procedure, contact a local practitioner.

ENGAGE

You must engage problems (in fact, that is what you are being paid to do).

It will be the small file in the corner of your office that has no chance of success that will be your cause for future alarm. It will be the unattended client. It will be the unanswered communication. It will be the opposing counsel who feels slighted. It will be the judge who feels disrespected.

Caveat: Engaging may mean your hiring independent counsel.

For example, when confronted with a pre-litigation notice of legal malpractice claim, you should not respond yourself but instead engage independent counsel (if it is your desire to resolve this matter post-insurance reporting but without insurance tender).

REJECT THE CASE

If your client has multiple prior involvements with the legal system in multiple related or similar matters, you are looking at someone that will be the first to make you the target of their next case.

If you are contemplating engaging a client on the eve of the statute of limitations expiring, discovery deadline looming, or in the trial pool, you are inviting disaster by your practical inability to make a pre-retainer objective analysis. If your potential client was previously a pro se litigant, there is a reason why no other attorney took their case. If it is outside your practice area, you will make mistakes.

Long gone is the "golden age" of pre-litigation settlements. Incivility between professional adversaries is on the rise. Candidly, I began prosecuting legal malpractice actions (notwithstanding it a compliment to our consumer practice) because of the noticeable upsurge of attorneys practicing outside their practice areas (likely strongly correlated to the current legal business recession).

FIRE INCOMPETENT STAFF

Even if it is your file clerk, if the papers you write are not making it into the correct files or any file at all -- you are exposed.

Take advantage of the recession. There are plenty of competent support staffers out there willing to work cheaply just waiting for your hire.

KNOW THE RULES

If you have a diversity personal injury case pending before the Eastern District of Pennsylvania, you must know the Federal Rules of Civil Procedure, Eastern District Rules of Civil Procedure, the Pennsylvania Rules of Civil Procedure and your particular judge's practices and procedures.

You should also know the Rules of Professional Conduct, your local county court's rules and be kept abreast on ever-evolving procedural case law.

To quote another well-respected attorney, "those who make the least mistakes win."

TAKE ONLY MERITORIOUS CASES

If you are an insurance defense attorney, your ability to compromise a $100,000.00 claim to a $80,000.00 settlement is an indication of your meritorious effort. If you are representing a capital criminal defendant, your ability towards a plea bargained life sentence is meritorious. If you are a contingent fee personal injury attorney who successfully obtains a $5,000.00 settlement, you have performed meritoriously.

However, if the case cannot be represented meritoriously in any respect, reject the case. Remember: a great lawyer can make a mediocre case good, but no lawyer can make a bad case mediocre.

This is not to say that losing is an example of being non-meritorious. There is something to be said for fighting the good fight.

However, the inability towards a meritorious outcome (whether by the costs exceeding value, there being liability with no damages, or an inability to mitigate your client's exposure) will certainly mean that the court, opposing counsel and your client will look to you for vindication for what they cannot achieve through due process (whether it be by cutting your fees, trying to seek a recovery through your malpractice carrier, or calling your efforts "frivolous," even if you did your best for the best reasons achieving the best yet non-meritorious outcome).

Again, because you are human, no matter that you follow the above advice, you will likely be the subject of legal malpractice, sanctions or a Dragonetti claim. At the very least, you will be threatened. Acknowledging that possibility should, however, make you more adherent to the above suggested customs. Note, this article does not discuss calendaring, timelessness or other necessities of daily practice I take for granted. Even though mistakes do happen, you need no advice as to those fundamentals.

Good luck. It's a jungle out there!

Matthew B. Weisberg is the managing partner of Weisberg Law, trading as Consumer Justice Alliance. He formerly represented lenders, real estate investors and insurers, and now focuses his practice on consumer and individual rights throughout Pennsylvania and New Jersey in both state and federal courts. Weisberg represents victims of fraud, civil rights violations, consumer abuse and foreclosure debtors-defendants. He can be contacted at mweisberg@weisberglawoffices.com or 610-690-0801.