Mediating the Legal Malpractice Case – Part I: Knowing When to Mediate

Mediation Service Sacramento, CA

Knowing when to mediate is crucial for success in any case, but it is particularly important in legal malpractice matters because the central issues are causation and damages and, to a lesser extent, duty, and statute of limitations.  

A missed statute or a bad result, standing alone, do not give rise to a legal malpractice claim. The parties (and attorneys) to the legal malpractice action need to understand the nature of the underlying action before one can conclude the result was due to the attorney’s error. This requires the attorneys to review and analyze the underlying transaction or litigation, as the case may be, for key issues as to where the case went wrong. Those issues could include:

  • Where the underlying matter was a litigated matter, were there affirmative defenses raised (or could have been raised) that would have negated the underlying claim (i.e., like a statute of limitations)? If so, then there is no malpractice.
  • Was the defendant in the underlying matter solvent such that any judgment would have been collectible? If not, then there is no malpractice.
  • In a transactional matter, is the subject of the dispute the result of the interpretation of vague transactional terms or simply nonperformance by one side? The former could be the result of attorney error, whereas the latter may not.

Thus, at a minimum, the lawyers must have reviewed and analyzed the attorney’s file, with particular focus on the following:

  • Communications with the client to determine the advice provided and the client’s response to the same;
  • Communications with opposing counsel;
  • Billing records;
  • In litigated matters, pleadings, written discovery, and depositions from the underlying matter; and 
  • In the case of a transactional matter, all drafts of the transactional documents.

It is also wise to consult with a subject matter expert to make sure that you, as the lawyers in the malpractice action, understand if, and how, the attorney erred.

Prosecuting and defending a legal malpractice case can be expensive depending on the nature of the underlying matter or transaction. If, after reviewing these materials, the argument can be made that the underlying result would have been different but for the attorney’s error, the case is ripe for a mediation.  

William A. Muñoz has more than 20 years of experience defending legal malpractice cases. He is also a certified specialist in Legal Malpractice Law by the California State Bar Board of Legal Specialization and full-time mediator with Muñoz Dispute Resolution. With his depth of knowledge and experience evaluating legal malpractice claims, Mr. Muñoz is ideally prepared to help you efficiently resolve your legal malpractice case. Contact us today to schedule your mediation.