Tuesday, August 18, 2009

The Malpractice Suit--Part 1

The malpractice suits--sorta sounds like a garment from the Menswearhouse.

27 years no malpractice claims--that is, until Pedro sued me.

From the standpoint of a client, the lawyer holds nearly all of the cards as it pertains to malpractice actions. Technically, a malpractice lawsuit is a "tort" action that alleges/says that the lawyer acted in a way that was negligent in his representation of the client and, this is essential--the lawyer's negligence caused the client's claimed injuries and damages. The first part of the claim against the lawyer requires that the client show that the lawyer owe the client a duty of professional care which the lawyer screwed up. The second part is called causation--in sum: the lawyer's screw up caused the damages. Lawyers screw up all the time, but they might not owe a duty to the person bringing the lawsuit; this happens all the time in divorce court where the pissed off ex-spouse wants to sue the opposing lawyer. No duty, no lawsuit. The second obstacle--causation is the more difficult obstacle to plaintiffs. Let face it, clients come to lawyers because things are already bollixed in their lives--the damages already exist. Proving that the lawyer caused damages through their screw up is a pretty arduous burden for most clients.

Pedro sued me because he said I gave him bankruptcy advice that he relied on to his detriment. To tell the truth, I really did not view Pedro's claim as a real threat to me--since I am not a bankruptcy attorney, and I wasn't Pedro's bankruptcy attorney; Pedro had a bankruptcy attorney, that was not moi. I represented Pedro in a civil lawsuit which settled for $175,000. Pedro had been told that he was to turn over the proceeds to the bankruptcy trustee by the bankruptcy trustee (see illustration), and his bankruptcy attorney. So where's the problem, you ask?
Pedro was 45 years old when I met him. He was one of 5 or 6 Hispanic men who as youth were raped and molested by a Roman Catholic Priest. The claim I handled was against the archdiocese--one of hundreds of claims I championed for victims of sexual abuse over my career. When Pedro's claim settled he told the lawyers that he didn't know if he could keep the money--we didn't know, I didn't know; but we said maybe his money because it related to a claim for injuries he sustained as a minor--perhaps it wouldn't be a bankruptcy asset. I agreed to hold his money in escrow until he obtained a definitive answer. In the interim Pedro was to consult with his bankruptcy attorney, and when he did not get the answer he hoped for I referred him to other bankruptcy attorneys. Eventually, I received a document from the bankruptcy court saying his matter was at an end, and I paid Pedro his money. He spent it. The bankruptcy trustee came after Pedro and came after me.
Eventually, the bankruptcy court deemed Pedro's actions tantamount to fraud and Pedro's claim that he relied on my advice--ridiculous. The bankruptcy court and a later appellate panel of the bankruptcy court pointed out that he had a personal injury attorney: me, and a bankruptcy attorney, Joe Haircut. he could not credibly claim to have relied on my "bankruptcy advice" when Joe Haircut was his bankruptcy attorney; and more importantly because, the Bankruptcy Trustee: Monee Grubber, ordered him to turn over all the dough from any settlement he might get, at Pedro's initial bankruptcy hearing long before the claim was settled.
Pedro hires a well-known former prosecutor: Evel Basterd. Attorney Basterd chooses to pursue me despite the facts. As I said, I gave the matter little thought and no concern. My sainted attorney, Lester, working by the way, pro bono, had already obtained the bankruptcy court results relating to my non-responsibility for Pedro's actions--we waived a jury and went to trial in front of Judge Irishname, brother of Judge Irishname, son of the late Judge Irishname, and grandson of the very late Judge Irishname; oh, and married to Judge Irishname.
Judge Irishname did not view the outcome of the federal bankruptcy court proceedings as binding on the state court and we proceeded to trial. How can I put this succinctly(?), I am fucked. So much more later!

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