Comments on: Lawyers: no harm in botching suit since it had no merit anyway

By: Update: court dismisses Kremen v. Morelli

Update: court dismisses Kremen v. Morelli — Mon, 22 Sep 2008 12:34:24 +0000

[…] covered this legal malpractice claim last year, with particular attention to the defendant law firm’s argument that it doesn’t matter whether the case was handled […]

By: Commentor

Commentor — Wed, 07 Nov 2007 11:51:41 +0000

In most states, to prove malpractice you generally have to prove that but for the attorney’s negligence your case would have won.

There are some good arguments both for and against that rule.

By: Jason Barney

Jason Barney — Tue, 06 Nov 2007 22:22:52 +0000

Okay, so much for the "contingency-fee attorneys won't take meritless lawsuits" argument, that is, if you believe the defendant attorneys in this malpractice suit are now telling the truth. They change their whistle to whatever tune suits them at the moment. For shame!

By: Tom T.

Tom T. — Tue, 06 Nov 2007 18:50:44 +0000

Isn’t their theory, as stated in the title of the post, the applicable standard for reviewing attorney error in criminal defense?

(Obviously, there are different policies applicable to a criminal defense, but it just struck me as interesting.)

By: Supremacy Claus

Supremacy Claus — Tue, 06 Nov 2007 15:23:58 +0000

I like this argument. If it prevails, it represents "knowledge" of the lack of merit of the case against the doctors. That is an element (malice) for an abuse of process claim by the doctors. The doctors should file in time to make the statute of limitations deadline, unless they want to have the basis to sue their own lawyers for legal malpractice. A kind of legal Escher drawing. http://britton.disted.camosun.bc.ca/escher/drawing_hands.jpg

By: Thufir

Thufir — Tue, 06 Nov 2007 13:32:05 +0000

That opinion ought to make you feel a little tight in the collar.

One rational reaction would be to never take anything but a slam dunk case.* If you are unable to convince the Court to side with your tenuous legal argument to expand the statute or extend a theory of liability, you can’t call it tenuous later; by the Court’s logic, was the argument not a winner out of hand, you would have never made it, no?

Also provides a disincentive to preserve arguments and objections for appeal; again, why would you make such an objection if you didn’t know that it was a winner (only to be stifled by the cruel and unfeeling courts).

Looks like yet another case of bad facts yielding bad law.

* If you have any of these laying around, feel free to call.

By: throckmorton

throckmorton — Tue, 06 Nov 2007 13:31:59 +0000

I hope that this will be a trend and that and more attorneys are sued for malpractice. Once they face the same nightmare that they have created there may be some reform. I find it interesting that if a doctor does one thing and a so called “expert witness” says that he should have done something else, there can be a lawsuit. If an attorney advises one thing or tries a case a certain way and loses and you find a “expert” who says that he should have done it differently it is not malpractice.