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Legally Speaking


Issue: August, 2009
Author: Scott E. Ortiz

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Unmet Expectations (i.e. My client is not happy; therefore, I am being sued)

Most of us have been indoctrinated with statistics pointing out those practice areas which make us vulnerable for claims from clients. The Attorney Liability Protection Society (ALPS) statistics confirm the following areas of practice are most likely to be the basis of a claim:

  1. Civil Litigation Plaintiff –PI work had the greatest number of claims
  2. Real Estate – not surprisingly, real estate came in a close second
  3. Domestic Relations
  4. Corporations/Business
  5. Collections/Repossession – (violation of the Federal Debt Collections Practice Act)
  6. Estate/Probate/Wills/Trusts

Additionally, the fastest growing area of practice for claims was in Civil Litigation Defense. Again, this indicates that corporate clients and insurance companies are becoming more aggressive in pursuing counsel for errors in representation.

However, more claims are being brought from the perspective that the client did not receive the representation expected regardless of whether the outcome was in the client’s favor. This directly relates to the failure of lawyers to advise their clients as to expectations and failing to document those discussions. Too often clients complain their lawyer did not fully explain the risks, and although the lawyer says he did, there is no documentation or follow-up correspondence confirming the discussions. This makes defending difficult because it becomes a credibility issue. Furthermore, these cases tend to be expensive because dispositive motions are not available.

Most risk management seminars for lawyers rightfully stress the importance of communication between you and your client. Not only is it an ethical obligation set forth in our professional rules to keep the client well informed (Wyo. RPR 1.4), but keeping our clients well informed with written correspondence, or at a minimum, e-mail communication (which can be verified) helps reduce confusion, surprise, and disappointment when any aspect of a representation does not go in the ideal manner for a client.

Clients often sue lawyers because their expectations became entrenched early in the case. It is dangerous when a client believes the case may be worth hundreds of thousands, if not millions, of dollars. Once that conversation occurs with your client, it is extremely difficult to “un-ring that bell.” If the client is led to believe at the end of the litigation process that he or she is going to be obtaining a large settlement or recovery, and that does not occur, this is an open invitation for him or her to hire someone to scrutinize your conduct and look for ways to show that outcome should have in fact occurred.

I like to see letters in the client’s files which confirm the risks of litigation and confirm that although you are hopeful, or cautiously optimistic about the case, there are no guarantees, and there may be a lengthy, difficult battle ahead.

Similarly, have good documentation regarding the anticipated costs in pursuing a claim. Clients who have costs which greatly exceed their expectation and diminish their ultimate recovery want explanations how that occurred, since they may have a different perception of reality based on the initial discussion of the case.

In addition, I have found the following concerns will certainly be raised and questioned when a client has unmet expectations and a “retrospective” analysis is done regarding your representation. The first thing to be questioned will be whether you had the experience and background necessary to accept the case in the first place.

No matter how fortunate you might have felt at the time you took on the new client and case, if it turns out unfavorable, one of the first questions which will be asked is, “How many of these type cases have you done in the past?” Did you feel comfortable drafting those key document(s) involving that transaction which was worth millions of dollars to your client? Were you aware and capable of performing all necessary due diligence?

In the litigation setting, did you feel comfortable taking on the opposing experts in an incredibly technical sub-specialty (aeronautics failure, medical malpractice, construction or product defect)? Consider how you would answer those questions next time you take on a new case or a new assignment.

There are many valid reasons to reach out to others in the profession who may have experience in certain areas, and enlist their services as co-counsel as necessary. Specifically document your client(s) acknowledgement of this fact.

Although Wyoming case law holds “professional judgment” should not be the basis for a claim, many suits, in fact, are based on a second-guessing of key decisions made by the attorney during the case.

Even with my clients who have kept meticulous notes and documentation in their files, many times I wish there was correspondence on key strategic issues in the case. This can include discussions such as employing certain experts, and if not, what is the reason it is believed the expert is not needed? Should there be a jury trial versus a bench trial?

Even if you can articulate multiple reasons you made a key decision, many times the client may have a different recollection as to what the conversation entailed, including what was, or was not explained. These are the circumstances when a letter confirming the agreement on a key strategic decision can be invaluable when defending your position.

As I have defended more and more Wyoming lawyers, I have seen many occasions when these key decisions are challenged later in the litigation process. Also be wary after a successful settlement. Many savvy lawyers have very explicit language in their releases which make it clear they are not giving advice as to the taxability or non-taxability of certain damage awards, and that the client needs to seek out his/her own investment or accounting advice on those issues. If you are not a tax lawyer, do not act like one. This is a prime way for a client to have an unmet expectation.

Always remember many aspects of our personal and professional lives are entwined.

Common topics which are retrospectively raised include what else was going on in your life during the case. Were you inundated with other cases and clients and unable to give your full attention to this case? Were you forced to delegate key matters of the case to inexperienced associates or partners who did not perform the task as you would have? Was your personal life affecting your ability to practice?

Attorney impairment due to alcohol or drugs, and even divorce, injury, and/or depression will also be questioned. During your deposition, these all become fair game even though they may not have played any role in the outcome of the case. These unpleasant topics will certainly be raised (ad nauseam) when your client wants explanations why his or her expectations were not met.

There are difficult questions you must ask yourself at the front end of the case. Am I qualified to take the case right now, and what are the ramifications if this case does not go well?

Take an additional 5-10 minutes to document key strategic decisions and it may save a call to your malpractice carrier.

Scott Ortiz is a partner in the firm of Williams, Porter, Day, & Neville, PC, in Casper, Wyoming.

Copyright © 2009 – Wyoming State Bar