Suing Incompetent Attorneys
We are sometimes asked, “Can I sue because my lawyer wasn’t very experienced?” Lack of experience, however, doesn’t mean the lawyer didn’t do a good job. The better question is can I sue because my lawyer was incompetent. The answer to that question, of course, is yes.
Legal malpractice occurs when a lawyer fails to use the “ordinary skill and care” that would be used by other lawyers under similar circumstances. Simply because your lawyer was just a few months out of law school, lost your case or didn’t win as much money as you expected is not evidence of legal malpractice.
Every surgeon had a first surgery just like every litigation lawyer has her first trial. We have to start somewhere. Lawyers that lack experience probably should find a mentor until they have the right experience for a particular case but once again, it isn’t malpractice not to have a mentor.
Store Owners Sue “Inexperienced” Lawyer They Say Botched Case
Earlier this month the owners of a Utah online battery store sued their lawyer after they were hit with a $2 million jury verdict.
The store, which was not identified in the complaint, was sued by a smoker who was injured when his vape device exploded. The store had supplied the battery.
The store believed that the smoker modified the battery and therefore they were not responsible for the smoker’s injuries. Because the store had liability insurance, the insurance company (Nationwide) paid to defend the lawsuit. The store owners say the lawyer hired for their defense was inexperienced and did a poor job defending the lawsuit.
The store lost after a jury awarded the smoker $2 million. As we said earlier, simply because your lawyer loses doesn’t mean she committed malpractice.
One of the more damaging allegations of the complaint is that the smoker was willing to accept $200,000 to settle the case. That is ten times less what a jury ultimately rewarded. The store owners are unhappy because they were left out in the cold. When the lawyer wouldn’t accept the offer the case went to trial.
After a jury made a $2 million award against them, the store owners sued their insurance company and the attorney assigned to defend the case.
According to the owners, the lawyer “largely lacked any experience in complex product liability cases and had never tried such a case before a Jury.” They also say she failed to obtain help from someone with more experience.
Although the owners had a million dollar liability policy, the insurance company only made a $12,000 offer. Subsequently the smoker said he would accept $200,000 in full settlement.
Ultimately the jury awarded the smoker $2,048,000 plus hundreds of thousands of dollars for attorneys’ fees, a total amount over a million dollars more the store owner’s policy limits.
After an appeal and months of delay, the insurance company paid the entire amount. By then, however, the store owners mental and physical health had deteriorated and the store’s “operations and reputation were in shambles and ruined.” The stress on one owner was so bad that he developed stress induced paralysis known as Bells-Palsy.
In addition to claiming that their attorney was inexperienced, had never tried a jury case and had no experience in complex products liability cases, they also say she botched the case:
“Defendant Santoro [the attorney] did not seek to collect, protect or preserve the allegedly defective product. Defendant Santoro did not seek to actually assist the Plaintiffs [store owners] in collecting and reviewing relevant evidence. Defendant Santoro did not investigate and evaluate the [smoker’s] claim as to the battery actually used by the [smoker]; Defendant Santoro did not investigate and evaluate the [smoker’s] claim as to his use of a highly modified and therefore inherently dangerous vape-atomizer. Defendant Santoro did not retain appropriate consulting experts, and Defendant Santoro did not even obtain an appropriate expert witness to testify on the Plaintiffs’ behalf against the [smoker’s] claims.
“Defendant Santoro never refuted the [smoker’s] damage figure, as the [smoker] presented to the Jury, and instead took a dangerous “all-or-nothing” approach asking the Jury to award the [smoker] nothing for his general damages…
“Defendant Santoro’s conduct during the trial was so cold, callous, and even rudethat the Court refused to enter a remittitur of damages on the basis of an improperly impassioned jury – attributing all such inappropriate passion directly to Defendant Santoro’s inappropriate conduct which had most likely alienated the jury and caused them to demonize the Plaintiffs throughout the trial.”
If Attorney Santoro is found to have committed legal malpractice, it won’t be because this was allegedly her first trial. Any finding of liability would likely stem from her failure to get help and properly communicate and explain the risk of not settling.
Did an Inexperienced Lawyer Botch Your Case?
If you lost a case because of the actions of an inexperienced lawyer, you may have grounds to sue your lawyer. As this post and the example cited in this letter suggest, you can successfully sue if you can show your lawyer didn’t deliver the duty of care owed to you.
To learn more about malpractice, visit our legal malpractice information page. Ready to see if you have a case? Contact us online, by email [hidden email] or by phone. 202-800-9791. We take cases nationwide. Most cases accepted on a contingency fee basis. All inquiries protected by the attorney – client privilege.