I often have the misfortune of having to explain to prospective clients that even though their previous attorneys had acted in a way that is almost unthinkable, I can’t help them because they weren’t hurt enough. I have to explain that legal malpractice cases are expensive and that the damages have to be significant to justify the expense.
Today’s Lodi, California newspaper has an article on a legal malpractice case that serves as a perfect example of what I tell potential clients. From late 1996 to early 2004, attorney Michael Donovan represented the city of Lodi in a lawsuit over groundwater contamination. After criticism from the judge overseeing the case, the city fired Donovan and hired another lawyer. The city eventually settled with all the parties.
After the firing, the city sued Donovan for legal malpractice. Donovan, though paid over $14 million by the city, countersued saying that the city still owed him fees. Donovan claimed he was owed millions more, a percentage of all the settlements, and interest.
The case settled with the city agreeing to pay Donovan an additional $1 million. The primary motivating factor was the potential cost of the litigation. Through the settlement, the city had spent $2.5 million on the case and expected to spend an additional $1 million for the planned six week trial and another $1 million for a potential appeal. The city noted that the city’s attorneys took more than forty depositions in the case and would have to call numerous experts to talk about the underlying claim.
Admittedly, this is an extreme case. The underlying case involved complicated issues and more than 100 parties. But the same principles apply. It’s a tough row to hoe having to hire experts to prove up any underlying case and then also having to hire attorney experts to prove up the legal malpractice claims. But despite all the reasons and rationales, it doesn’t make it any easier to tell clients that have been wronged that you can’t help them.
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