John Blumberg has experience representing clients, defending lawyers, mediating and arbitrating fee disputes, and consulting and testifying as expert witness in legal malpractice litigation. The following article is a synopsis of several of his published articles on the subject.

Expert Testimony to Prove Negligence: Negligence, as applied to an attorney, means that he or she fell below the standard of care practiced by reputable attorneys. It is the failure to know the law and apply it. This point is proven by expert testimony. Whether testifying for the plaintiff or defendant, the expert witness would be able to explain what depositions are and why they are important. The expert's task goes far beyond the conclusion that the defendant-lawyer did or did not fall below the standard of care; he must lay the foundation for the jurors to be able to understand the language of the law and the reasons why actions must be taken or avoided. It is not enough for the expert to know the standards and the law; the expert must be able to make it understandable on a basic level.

Proving or Disproving Causation and Damages: A legal malpractice case is only as strong as the underlying case would have been if it had been properly prosecuted or defended. In legal malpractice litigation, it must first be established that the prior lawyer was negligent. The plaintiff then must essentially try (or retry) the underlying case. The defense of a legal malpractice case often focuses on five potentially faulty assumptions made by the plaintiff's lawyer: (1) that the underlying case had merit, (2) that damages in the underlying case were collectible, (3) that the bad result was malpractice, instead of judicial error, (4) that the malpractice caused the client to lose all of his rights, and (5) that the statute of limitations expired because of the passage of time.

Did the underlying case have merit? It's not murder to fire a bullet into a dead body, and itís not battery to take a swing at someone's nose and miss. Similarly, itís not legal malpractice to make a mistake that causes no harm. A legal malpractice case is viable only if there is underlying causation. That is to say, "no harm–no foul."

Were the underlying damages collectible? Even if there was admitted negligence in the underlying case that would have resulted in a million-dollar verdict, there can be no cause of action for legal malpractice if the judgment could never have been collected.

Was the bad result judicial error? An adverse judgment in the underlying case does not necessarily mean that the previous lawyer was in error; the judge may have been wrong. The trial judge in the legal malpractice case can be asked to decide whether the prior judge was mistaken in his or her ruling and would have been reversed on appeal.

Are there alternative legal remedies? Even if a lawyer's error has caused the loss of one remedy for a client, an alternate remedy might be available. For example, a federal claim may be available in a case that is time barred in state court.

Did the statute of limitations really expire? A case involving an attorney's failure to file a case on time is sometimes called a "blown statute case." Although it would seem that such a case would be "slam dunk" legal malpractice, the statute of limitations may have been tolled by any one of numerous statutory and judicially-created mechanisms. An interesting example is the injured plaintiff who was in a coma for several days. The statute was tolled while he was unconscious.

Looking at Settlement Malpractice: The client who demands, at the beginning of a case, "Spare no expense and go all the way," may end up being the client who, at the less-than-successful conclusion, asks, "Why didn't you work out an early settlement that could have given me a better result and saved me the enormous cost of litigation?" An attorney has a duty to explore settlement and to know about arbitration and mediation ó the alternatives to traditional litigation.

Issues that come up in settlement malpractice cases include threatening abandonment of a client if an inadequate settlement is not accepted, failing to properly document and confirm a settlement agreement, and failing to specify the scope of an arbitrator's authority. John Blumberg has special expertise in this area, having served as a private and Superior Court-appointed settlement officer, mediator and arbitrator deciding cases and facilitating settlement discussions in hundreds of matters.

Malicious Prosecution: Getting Sued by the Defendant: The underlying case was terminated favorably to the defendant, no reasonable attorney would have considered the case tenable, and there was an improper motive or conscious disregard for the consequences. The former defendant who prevailed in the unjustified lawsuit is now plaintiff in a malicious prosecution lawsuit, and the target is the former plaintiffís attorney. If the jury believes that the former plaintiffís lawyer violated a public trust which bestows the power to file and prosecute valid legal actions, actual and punitive damages can be awarded. Expert testimony will be necessary on each side to explain the framework of litigation and the ethical duties of attorneys.

An attorney's first reaction to being sued may be anger at the former client who is looking for someone to blame for a bad result. The clients who suffered the bad result, however, may be feeling betrayed by the person in whom they placed their utmost trust and hopes. Both parties will need skilled lawyers who are specialists, and the specialists will ultimately need to retain an expert witness and consultant.

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DISCLAIMER: This site contains only general information and does not constitute legal advice. The question of whether laws, court decisions, or legal arguments apply to a specific case can be answered only after a formal consultation with an attorney.