Settlement Issues Could Lead to Legal Malpractice

December 3, 2012

Legal Malpractice

Legal Malpractice in OhioAs a legal client, you should remember it is always your decision whether to settle a case or not.  The attorney cannot make the call.  He or she should only advise you of options and make recommendations.  It does not matter if the attorney has taken your case on a contingency basis.  You should not let that influence any of your decisions.

If you allow your attorney to force a settlement, the lawyer could be committing lawyer malpractice and if you sign that settlement, you could lose your opportunity to sue him or her for legal malpractice.

Attorneys have an obligation to inform a client of all opportunities to settle a matter.  A lawyer may have a lot of time invested in a case and may not get adequate compensation from a minimal settlement.  It is tempting to let the case go forward and not inform the client of a settlement opportunity, but this could be legal malpractice (if financial losses or other damages result) and it is certainly against the Ohio Rules of Professional Conduct.

Should I settle this case?  This is a question that’s likely to come up at the beginning of a case, somewhere in the middle and even while trial is ongoing.  It may come up more than once.  No two cases are ever exactly the same.  Thus, an attorney cannot always say with certainty if settlement is a good idea or if it would be better to wait.

Some factors to consider are:

  • Do the facts of the case weigh heavily in favor of the plaintiff? (If they do, the plaintiff should have more power in any negotiations and doesn’t have to accept the first offer)
  • What kind of “risk tolerance” does the plaintiff have?  (Does he need the settlement immediately or is he unable to handle the stress of trial preparation?) Perhaps, he cannot risk walking away from an offer and believes, “A bird in the hand is worth two in the bush.”
  • Other settlements that were reached in similar cases should give your attorney an idea whether there may be a higher offer available.
  • Recent jury verdicts and damage awards in your jurisdiction may have some influence on whether a settlement is reasonable.

There may be warning signs that a lawyer is trying to improperly settle your case. The attorney may take on more cases than he or she can handle and certain defendants may not be sued in a timely manner and the statute of limitations runs out.  This can be a very serious matter and is grounds for legal negligence..

Sometimes an attorney will write his client letters or tell him or her over the telephone that their case is bad and won’t fare well in court.  This could be true or it could be the attorney’s effort to settle and cover up mistakes the lawyer knows he or she has made.

Before agreeing to a settlement that you do not feel comfortable with, speak to a legal malpractice attorney.  You could compare it to getting a second opinion from a surgeon before “going under the knife.”

Remember you could lose hundreds of thousands of dollars through legal negligence.  For example, a settlement might look attractive, but it will not be so appealing to the physically disabled plaintiff left with an inadequate amount of money for long-term health care. Impatient  to settle the suit, the attorney may have committed legal malpractice in the form of breach of fiduciary duty by not informing his client of the risk of settling.

An inadequate settlement might also emerge if a settlement is agreed upon too quickly.  For example, in a divorce case many of the defendant’s assets may not be known at the beginning of the divorce action.

Settlements can also work to your disadvantage if your case is settled without your knowledge,  if it is settled prematurely, if you are not informed of important developments in your case that affect settlement and if your better judgment or wishes are against settlement and you are pressured to settle regardless of your feelings.

How does a client prove legal malpractice?  Generally, to establish a cause of action for legal malpractice, based on negligent representation, which most legal malpractice claims are, one must show:

(1) The attorney owed a  duty or obligation to the plaintiff,

(2) That there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law for an attorney which is exercising the degree of care, skill and diligence that a lawyer of ordinary skill and knowledge commonly possesses and exercises in that area of the law,

(3) That there is a causal connection between the conduct complained of and the resulting damage or loss.

If you believe you have been injured as a result of your lawyer’s conduct, it is important to discuss the facts of your case with a legal malpractice lawyer skilled at evaluating legal malpractice claims.

Because the statute of limitations is short, it is important not to delay if you believe that you have experienced legal malpractice.  Call the Ohio legal malpractice lawyers at Slater & Zurz LLP at 1-888-534-4850 or go to slaterzurz.com and fill out the FREE CASE REVIEW at the top right hand side of the website.

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About slaterzurz

Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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