Why are claims made, and how do you defend them?

Why are claims made?

  • Claims are made for many reasons, but the two main reasons are because a mistake has been made or a client perceives that a mistake was made because their outcome did not meet their expectations.
  • Assisting the client in developing reasonable expectations regarding outcome begins at the initial consultation and must be actively pursued throughout the course of the representation.
    • As the matter evolves, new facts and perhaps newly applicable law affects the probable outcome – as the lawyer’s expectations regarding outcome change, so should the lawyer advise the client.
    • Any bad news regarding a case development should be shared with the client as soon as possible. Clients who learn that their expert won’t support their liability theory months after the expert was retained will feel the lawyer is to blame – the lawyer becomes the lightning rod of the client’s discontent.
    • Lawyers sometimes inadvertently raise client expectations to an unrealistic level. We sometimes call this puffery or overpromising.

Claim Repair and Mitigation

  • Sometimes claims can be repaired or damages can be mitigated. Claimants are obligated to mitigate their own damages before and during a legal malpractice claim.
  • The earlier a claim or potential claim is reported to the lawyer’s insurer, the more likely it is that repair or mitigation are options.
  • Generally, the cost of repair or mitigation is covered under the policy.
  • Sometimes the original lawyer can undertake the repair work on behalf of the client, but only if there is no conflict of interest in doing so and if the client consents after being fully informed of their right to seek separate counsel on repair and a possible claim arising out of the mistake that makes the repair necessary.

Other Matters of Concern

  • Does your carrier give you any input in the selection of defense counsel should a claim arise?
  • Is your consent necessary in order to settle a claim?
  • How does your company work with you in resolving your claims?