If you're like most attorneys, you faithfully pay your malpractice insurance premiums with the hope that this will wind up being money down the drain after you go decades without ever enlisting the help of your insurer. Unfortunately, malpractice lawsuits can befall individuals at any stage of their careers, and you may at some point find yourself being personally served a complaint by a representative of your former client. Even attorneys who are well-versed in other areas of the law may not be familiar with malpractice defense, and having your reputation -- or even your professional license -- on the line can be a highly stressful experience. Read on to learn more about what you can expect from the malpractice defense process, as well as some of your strongest potential defenses against an unwarranted claim of negligence.
What are some of your potential defenses to a claim of legal malpractice?
When reviewing your former client's verified complaint, you'll want to give yourself some time to digest each of the allegations, work through your emotions, and then return to the complaint with a cooler head so that you can quickly outline any potential defenses. You'll also want to notify your employer (unless you're self-employed) and your malpractice insurer so that they can be on standby to offer any assistance you may require. Your malpractice insurance should help cover the costs of your legal defense, even including travel and related expenses if you're required to go out of town for hearings or depositions -- but you may waive certain rights and coverages if you don't promptly notify your carrier that a lawsuit has been filed.
Having a complaint dismissed with prejudice through the summary judgment process is the quickest and simplest way to eliminate this lawsuit from your life for good. To do so, you'll need to establish that the plaintiff's complaint -- even taken at face value -- does not constitute a claim. Introducing evidence to dispute the plaintiff's allegations may be necessary in some situations, but will lead to a factual dispute that will eventually be decided by the trial court judge or civil jury and is not properly subject to summary dismissal. Seeking summary dismissal may be a good option to pursue if the plaintiff's complaint appears to be more greatly based on their unhappiness with the outcome of a case rather than the actions you took (or didn't take) during your representation. In other cases, the plaintiff's complaint could be barred by your state's statute of limitations or even a waiver they signed.
In cases where the allegations are stronger, you may instead need to look into some affirmative defenses. One, failure to mitigate, can often be utilized in cases where both you and the client dropped the ball. If you missed a deadline because you were waiting on crucial information from your client, or if you can show that your client was aware of certain information that could harm his or her claim and failed to bring it to your attention before trial, you may be able to successfully show that your client's case was impacted primarily by his or her own actions rather than yours.
What should you expect from the malpractice process?
If you've never been sued for malpractice before, you may be concerned about the events to come or worried you'll need to mount a thorough defense in a short window of time. However, malpractice claims don't usually move any more quickly than other types of civil cases, so for areas with a slow civil docket, you may go months or even years before a final hearing or trial is scheduled. In situations where dismissal of the claim at an early stage is unlikely to be an option, this delayed process can give you and your insurer time to negotiate with your former client to see whether he or she is willing to accept a settlement in lieu of continuing to trial.
Although this process can be lengthy, you'll want to ensure you abide by all deadlines, including the deadline for an answer to the complaint. Failure to submit your answer in time could lead to a default judgment if you miscalculate the delays in that court's civil docket, and your malpractice insurance may not cover a default judgment award if you're deemed responsible for missed deadlines that led to the default.
Whether your specialty is as a professional license attorney or a family lawyer, keep these ideas in mind if a client files a complaint.
Share8 August 2016
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