Avoiding Malpractice in Litigation

[Craig]'s client lost his daughter when the driver of a car she was traveling in failed to yield to a train late at night at a dimly lit railroad crossing. Craig and his spouse knew the client well before the accident and frequently spoke with the client's family at church events and school activities, so Craig was acutely aware of the pain the client was experiencing when he asked Craig to represent the family in a case against the railroad. Although the attorney's initial instinct was to refer the matter to a lawyer familiar with railroad accidents, he reluetantly agreed to represent the family and "get the litigation started," but only after advising the distraught parents that if at some point they needed to associate with a specialist, Craig would have their permission to do so. Craig's case is troubling on many lev® els because there were so many warning signs that things might go wrong. The in® formality of the attorney-client relation® ship, along with Craig's initial reluctance to handle the matter, should have been a clue to Craig that he was not the right attorney for the job. Handling cases for close friends and family members can be problematic because often the attorney's sense of judgment goes out the door as the attorney desperately seeks a good outcome for the friend or relative. Craig's hesitancy to consult with his client about the bad news was not only a likely violation of the attorney's respon® sibilities to keep the client fully informed of all important aspects of the case (ABA Model Rule 1.4 Communications), but the delay could have jeopardized Craig's ability to secure insurance coverage if the client had brought a malpractice claim against him. Professional liability insur® ers can reserve the right to deny cover® age if the policyholder knew of a claim but failed to report it to the carrier. Such policy language is included to encourage lawyers to report claims early, thus giv® ing the insurer a chance to step in and possibly correct the situation before the damages in the underlying matter get worse. Craig's sense of paralysis upon learning of his mistake might have only exacerbated his troubles. Communicating with clients. Poor client communication is the other most common cause of malpractice claims. You may give good advice to your liti® gation clients, but if your most crucial advice-such as whether the client ought to settle a case -is misunderstood or completely ignored, proving that you ever gave that advice is a difficu