Category: Attorneys Only Posted on Apr 04, 2015

Limited Damages – Limited Effort?

*This page is intended for review only by Attorneys. The information contained is incomplete. The training, experience and skills of an attorney are needed to apply the facts of any situation within the law.

Article By: Attorney Bruce H. Stanger and Law Clerk Ryan McKeen
Stanger Stanfield Law., West Hartford, CT.

Able Attorney has two cases on her desk. The first case is a major wrongful death case, involving complex claims of products liability. The second case involves a client who received minor injuries in a car accident along with damage to his car.
Limited-Damages---Limited-Effort-
Able’s wrongful death case is potentially a multi-million dollar case. She knows that her wrongful death case will likely go to trial because she faces an insurance company with a reputation for taking all claims to court and a defendant known to defend their products. In the course of her representation Able spends countless hours developing the legal theory of her case, reviewing thousands of pages of documents, and consulting experts in both the area of products liability and damages. For months on end, Able burns the midnight oil perfecting her wrongful death case.

In poker terms, Able is “all in” on her major case. She hires a mock jury, employs a jury consulting firm, and moots the case against other attorney’s. In fact, the stakes are so high that Able hires the “Fab-Five” Image Consultants and purchases new suits that she believes will help make her case to the jury. No expense is spared because Able knows if she is successful she will reap the fruits of her labor for years to come.

Though most of Able’s time is taken up by her major case, she does not forget her smaller case. Able’s car accident case is reasonably valued at $10,000. In this case, Able spends relatively few hours reviewing relatively few documents and in developing her legal theory of the case. Able has successfully negotiated many similar car accident settlements in the past and knows this case will require relatively little of her time and effort to achieve a just result.
On her drive home late one night Able wonders if she has an obligation to work as hard on both cases?

The short answer is: no. The ABA Model Rules of Professional Conduct, require a competent handling of a particular matter including inquiry into and analysis of the factual and legal elements of the case. Model Rules 1.1 states “the required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.”

Not only does the major case, by nature, require more work, it also affords Able the time and resources to successfully litigate the case. A mock jury, though costly and time consuming, may mean the difference between winning and losing the case at trial. Able can spend this money because of the potential for a large financial award. Even hiring the “Fab-Five” Image Consultants at great personal cost may ultimately prove an investment worth making.

The same steps that are prudent in litigating Able’s major case will prove foolish when applied to her car accident case. A mock jury, a moot trial, and an image makeover will cost much more than the case is worth. In fact it would be improper for Able to expect reimbursement for more in costs than are reasonably necessary in her car accident case. The mock jury is of little benefit when Able is negotiating a settlement.

The duty is one of reasonableness under the circumstances. In both cases, Able must exercise the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer. The extent of the efforts depends on the cost of the effort, customary practice, and the time justified by the complexity of the matter.

Able could, however, just as easily be liable for malpractice on the minor case as she would on the major case. If Able fails to adequately prepare her car accident case, she would be liable for malpractice. For example, Able could be liable for malpractice, if she settled the case without reviewing her client’s medical records only to discover possible future treatment for a related injury. Just because it may take less effort to obtain the facts of her case, does not mean that Able is held to any less of a standard of care.

At any rate, on either case, Able will not be liable for legal malpractice for failing to hire image consultants. Now as for fashion malpractice, that’s left for the “Fab-Five” to decide.

Bruce Stanger

My litigation experience includes family law, divorce, product liability, construction law, professional negligence, shareholder disputes, medical malpractice, legal malpractice, and general commercial litigation.