I am about to lose a medical malpractice case due to attorney negligence. I am being threatened by defense to dismiss for a waiver of costs. Assuming I have a good legal malpractice claim, should I agree to dismiss it or let the things run their course until the judge dismisses so I can pursue the legal malpractice case?
The underlying medical malpractice case was strong. The Med Mal case is only in this situation SOLELY because of blatant attorney negligence, of which I only later found out (when it was too late) and verified by outside experts in the field of med mal. - assuming both cases are strong, and I am pursuing the legal mal with underlying med mal, then which way is best strategically for pursuing the legal malpractice case - dismiss via defense for a waiver of costs or let it run its course and let it get dismissed by the judge assigned to the case?
Wow, that seems like a loaded question, but one that should be answered ASAP by a legal malpractice lawyer.
In a professional malpractice case, you first must establish that the lawyer acted below the standard of care. That can usually only be established through expert testimony (i.e. in your case, another lawyer who does medical malpractice work willing to say that your current lawyer handled the case below the standard of care).
Secondly, you must establish that the negligence was the cause of harm. In other words, if you has already lost the case, you'd have to show that your (med. mal.) case had merit and that you more likely than not would have won it, had the lawyer handled it properly. So, when you try a legal malpractice case, you are in essence, trying two cases in one. You have to try the case against the lawyer for his mis-handling of the case; and you have to basically re-try your original case the "right" way. That is typically where these kinds of cases falter; the plaintiff may be able to show that the professional made a mistake, but cannot overcome the argument that the mistake didn't do any additional harm, or that there would not have been a different result even if the handling lawyer had done everything that the standard of care would have required.
(I would also add a sober reality: based on my experience and my regular review of jury verdicts in this area, the overwhelming majority of med. mal. cases that go to trial end up in defense verdicts.)
The third point is the issue of damages. And I think that's where your question may start to have some immediate meaning. If the negligence caused you to incur additional costs, and you had to pay for those additional costs, or if you can establish what the value of your case would have been had you won, those would be your "special damages." So, in a really odd and perverse sort of way, seeing your current case to conclusion and losing COULD increase the value of your legal malpractice case, because of the additional costs you feel you are going to incur if the defense wins and seeks costs via post-trial motion. BUT, that is a VERY risky move, since you're basically betting on beating the current lawyer in the legal mal. case, while still being on the hook for (or having already paid for) the defense costs in your current case. Quite frankly, that course would take a far greater intestinal fortitude than most people possess.
The question is then, whether you can dismiss the current case and still sue the former lawyer. My belief is that you can. You should be able to argue that you were simply trying to mitigate your damages by agreeing to the dismissal when all appeared to be lost.
I would nonetheless consult with a local attorney specializing in professional (legal) malpractice cases. Most reputable malpractice lawyers will consult with you for little or no cost. Avvo is a good resource for locating such an attorney.
Good luck to you!
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Attorney Hurd has given you an excellent response.
Generally speaking, you can dismiss the current case and still sue the attorney for legal malpractice.
However, whether you can win the legal malpractice claim depends upon whether you can get an expert to opine that you would have won the medical malpractice case (which is extremely difficult to do). Basically, you will need to simultaneously prove TWO cases, the underlying medical malpractice case and the legal malpractice case.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.