The Client’s Responsibility When a Lawyer Screws Up
When a lawyer screws up and her client is considering a malpractice claim, the question often arises as to whether or not the client who is or may be damaged has an obligation to mitigate the damages by seeing what can be done to reduce the damages. I have always applied a reasonableness standard to this question. I am not suggesting what the law would require, I am suggesting that it would be best for the client to take reasonable steps. We don’t know if the legal malpractice claim will be successful and we want to limit the arguments that the lawyer we sue may have in her defense.
It is easiest to apply this at the extremes.
Extreme 1 – A simple step by the client, with no risk to the client and no expense to the client, would eliminate the damage. Seems obvious take the step, eliminate the damage, and the lawyer who screwed up can breathe easily – one bullet dodged.
Extreme 2 – The steps would be complicated, expensive and would put the client at great risk. Seems obvious that a reasonableness standard would limit the efforts that the client should and could take.
The tougher decisions are in between. Every situation is fact driven. Every decision by definition should be evaluated.
- Do you take steps to mitigate?
- Once taking steps to mitigate, when can you settle?
- Must the client go for all the damages, or those available from the third party with only a reasonable effort?
- Does it depend on resources available to the client?
- Does it depend on the cost to mitigate as compared to the likely result?
- Are the costs associated with the mitigation recoverable as damages against the lawyer or as an offset against the funds recovered in mitigation?
All of these are initially questions of law but will likely later turn on the facts. We have also considered the opinion of the lawyer working on the mitigation efforts as a source of evidence on the reasonableness of the actions in mitigation.
Before taking any action, a review of the cases is critical.
