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Disclaimer: Information contained in pages and
articles on this site provide general information and are not intended to
provide legal advice on any specific legal matter or factual situation.
This information is not intended to create or provide a lawyer-client
relationship. It is not legal advice. Readers should not act upon this
information without seeking professional counsel.
Read full Disclaimers and Legal
Notices.
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Bucklin Of Counsel
does two things:
(1) Counsel -- to lawyers
only -- regarding the organization, "how to", and handling of litigation
(discovery, settlement, trial.)
(2) Consultant and Educator
-- to lawyers only -- by seminars and training regarding litigation and legal ethics.
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Key Benefits of Using Bucklin as
Counsel to Attorneys for Plaintiffs or Defendants:
 | Practical Experience, both sides of the counsel table. |
| Knowledge, Skill, Clear Communication.. |
| Ample Credentials. See
C.V. (Biography)
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"Bucklin's report was more than I expected, well written, and
effective."
Minnesota attorney. |
The expert litigation counsel to lawyers must explain
(1)
facts and (2) law and (3) legal ethics -- clearly and simply. |
Key Benefits of Using Bucklin to Give Your Next Seminar
or In-house training regarding litigation (discovery, settlement,
trial):
| Practical Experience, in several states. |
| Clarity. Fast Paced. Interesting. |
| Ample Credentials. See
C.V. (Biography)
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"[Bucklin's]
energy and practical examples from his experience made his portion of
our seminar exceptional."
V.P. of national organization,
commenting on seminar for 200+ of their attorneys. |
If you need a seminar or continuing legal education Make your next seminar
or In-house training:
| Practical and Clear. |
| Fast Paced and Interesting. |
Read more on available seminars. |
"Education should
provide solid and practical information, and always in a stimulating
mode." |
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Bucklin has 40 years of experience in procedural and transactional
work, and 30 years in selection and supervision of attorneys.
| Former managing partner of six state regional law firm. |
| Admitted to bars of four states. |
| Former general counsel of insurer, supervising legal work done in 34
states. |
| Present editor of ethics ezine publication of TIPS section of ABA. |
Attorneys prosecuting and defending
attorney negligence lawsuits may want to Read for tips
and a list of types of
opinions that can be elicited in the court or deposition testimony of a
qualified legal malpractice expert.
ATTORNEYS ARE BEING CHARGED WITH FRAUD AND MALPRACTICE in handling their
client’s cases. Such claims arise for a number of reasons, including
misrepresentation, misappropriation of funds, failure to conduct proper
discovery, failure to protect the statue of limitations for clients, neglect in
the proper handling of a client’s case, failure of the lawyer to communicate
settlement offers, and conflicts of interest that result in bad advice or
paperwork. Insurers and lawyers defending such cases need expert
opinion that is not biased by friendship with the defendant attorney.
Contact Bucklin now.
Tips on choosing an expert witness.
Review & Research is performed. Your materials are reviewed on an
objective basis, and the present status of the professional responsibility
code and the legal malpractice decisions of the state involved are
researched. We have special interest in Texas, Oklahoma, Minnesota, North
Dakota, South Dakota, Montana, Wyoming, Colorado, and Arizona, but are available
for all states. Opinions
and
Testimony are provided.
In most states, and for most cases, the legal elements of a claim for
attorney professional malpractice are:
| (1) an attorney-client relationship existed (The legal malpractice expert witness must state his description
of that element with clarity); |
| (2) the attorney acted negligently or in breach of contract (The legal malpractice expert
witness must state his description of that element with clarity).; |
| (3) the attorney's acts were the proximate cause of some damages sustained by
the client; and |
| (4) but for the attorney's negligence, the client would have been
successful in prosecuting/defending an underlying claim, or completing the
transaction involved.. |
The expert witness must show the jury facts, law, and legal ethics. It
must be done clearly, so that the jury and the judge understand what
happened, and how i was/was not below the standard, and why
it was/was not ethically proper for it to occur. The jury
must understand the verdict that will make things "right".
If your witness cannot do that, he/she is not the expert you need.
Items on which an expert can help, some of which items are sometimes
overlooked as possible expert testimony items, include:
| Malpractice in the underlying case or transaction at
issue: whether or not legal malpractice exists in the handling of the
underlying case or transaction is the issue between the plaintiff and
defendant. This is the usual item that most attorneys think of when they
retain an expert witness to explain professional malpractice. But often there
is more that can be done by an expert attorney witness in a professional
negligence case.
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| Breach of fiduciary duty. In some
instances, in addition to a duty of due care, there was a separate fiduciary
duty. For example, a conflict of interest may be a breach of fiduciary
duty. To involve/defeat the introduction of jury instructions and the
punitive damages that may be involved with fiduciary duty, an expert needs to
explain the facts showing fiduciary duty and the breach of duty as something
contrary to the acts of a reasonable attorney. See, e.g., Deutsch v.
Hoover et al, 97 SW3d 179 (Tex.App., Houston, 2002) for a discussion of the
possibility of both malpractice and breach of duty existing in the same case.
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| Damages --- what was lost by the defect in the
underlying case or transaction: what was lost (not the value of what was
lost) is sometimes within the area of expert testimony. The easy example
is the loss of the ability to sue because of the failure to meet a statute of
limitations. The less common example is the legal costs of
pursuing/defending underlying rights when the legal cost was occasioned by the
negligence
Sometimes the value of litigation that has been lost is the reasonable
settlement value of the underlying litigation case if it had been properly
handled. The theory of settlement value as a measure of damages is logical,
but it is new. It also makes a lot common sense, because most cases are
settled, not tried to conclusion. This is accepted
by some courts as a measure of the damages of the plaintiff
particularly if the claim is that a lawsuit was improperly settled.
Traditionally, the measure of damages is not stated in terms of settlement
value. For example, in Cosgrove v. Grimes, 774 S.W.2d 662,666 (Tex. 1989),the
court said that the amount of damages in a legal malpractice case is measured
by "the amount of damages recoverable and collectible from [the defendant in
the underlying suit] if the suit had been properly prosecuted." To
determine whether in your case the settlement value could be a measure of
damages involves legal research to first determine if such a measure is
presently available in your state. Then, if it is, expert review of the
underlying case is necessary to establish the settlement value of the
underlying case if it had been reasonably handled.
Notice that the claimant must also show that "collectiblity" if the
underlying matter had been properly handled. Sometimes this needs expert
explanation, as for example that insurance to make the payment did exist.
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| Proximate cause of damage from the underlying case or transaction. Where
the underlying matter is a transactional matter, the expert witness may be
allowed to state his opinion whether but for the negligence the transaction
would have been successful. For example, if the lawyer had included
certain language in the will, the distribution of the estate would have been
different.
Where the underlying matter is litigation, the opinion of the expert whether
the underlying case would have been won but for the negligence is generally
not admitted. But there are some states and some cases where exceptions
allow the testimony. See Whitley v. Chamouris, 574 SE2d 251 (Va. 2003) for an
example of how even within a state the rule may shift. In Whitley, in spite of
pronouncements in prior cases that :proximate causation in a legal malpractice
case...[is] decided by the fact finder after considering testimony of expert
witnesses" that a proximate cause opinion would be improper because "no
witness can predict the decision of a jury."
And in some states, the "most probable" result rule may become a vehicle for
an expert to testify on "probability". See for example the language in
Hall v. Fedor, 561 SE2d 654 (S.C. App. 2002)(On claim of inadequate settlement
caused by negligence, plaintiff has to show he would have "most probably"
received a larger settlement or "most probably" prevailed at trial of the
underlying claim.).
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| Costs --- if plaintiff wins the malpractice case:
the reasonable value of attorney's fees and costs in that part of the
malpractice case which involved proving the reasonable value of the underlying
case or transaction may sometimes be
recovered (see points # 2 and # 4 at hyperlinked page)
as costs by a prevailing plaintiff. Most attorneys, even experts in legal
malpractice claims, often are not aware of this element of damages. |
To find out more, go to either of the descriptions (they differ) at
Legal Malpractice/Ethics Services or
at Benefits of Using Bucklin Services.
OR
you just only may want to look at the short form
biography on Bucklin
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