How To Defend Yourself in Court without a Lawyer (and Win): Tips from Award-Winning Lawyer
How to Defend Yourself in a Legal Malpractice Lawsuit
Every lawyer understands that malpractice claims may arise when a former client is disgruntled with your service, whether it is warranted or not. You should be very careful to to do everything possible to provide impeccable services in order to avoid malpractice liability. However, if you find yourself being sued for legal malpractice, you should respond to the lawsuit quickly and prepare for trial if necessary. If your case goes all the way to trial, be sure to present the best case possible so you can avoid liability.
Responding to the Lawsuit
Read the summons and complaint.A lawsuit commences as soon as the plaintiff files a complaint and summons with a court. The complaint tells you as well as the judge what you are being sued for, why the court is the proper venue, and what the court should award the plaintiff as relief. The summons is a form telling you that you have been sued and that you need to respond within a certain time period.
- In a legal malpractice suit, the plaintiff's complaint will allege that (1) the statute of limitations has not expired, (2) you owed the plaintiff a duty of professional care, (3) you breached that duty, and (4) the breach caused cognizable damages.
Contact your malpractice insurance provider.While you re not usually required to carry malpractice insurance, it can have a huge impact on how your case will be resolved. If you do not have insurance, you may not have the funds to pay the plaintiff if you are found liable. However, if you do have malpractice insurance, two thing usually happen.
- First, your insurance company might defend you in court against the claims. If this happens, an attorney hired by the insurance company will be appointed to you.
- Second, the insurance company will set aside funds to pay the plaintiff if you are found liable.
Hire an attorney.If your insurance company does not provide an attorney for you, or if you want a specific attorney to help you, you should hire one before drafting an answer. Whether you are a current practicing attorney or not, you should never defend your own malpractice suit.You always want to hire an expert in the field to help with your defense. If you know of a particular lawyer or firm, reach out to them as soon as possible. Some firms even have professional liability teams.
- If you do not know of any attorneys, you can always contact your state bar association's lawyer referral service. After you answer a series of questions about your issue, the state bar association will put you in touch with a few qualified lawyers in your area.
Evaluate possible defenses.A response to a lawsuit is your opportunity to deny any claims you do not find to be true and to assert any defenses or counterclaims you may have. Therefore, before you draft your answer, you should research possible defenses to legal malpractice claims and determine if any of them apply to you.
- One possible defense might be "contributory negligence." Contributory negligence exists when your client's actions or inaction helped cause the damage you are being alleged to have caused. For example, contributory negligence may exist when your client fails to return important documents to you in a timely manner when no reminder should have been necessary. Contributory negligence might also exist when your client fails to show up to important court hearings.
- A second possible defense may be thein pari delictodefense. If your client's malpractice claim rests on the notion that you provided advice that led the client to commit illegal or immoral acts for which they were later found guilty of committing, you should always raise this defense. This doctrine rests on the idea that the law should not permit a person who who participates in illegal or immoral acts to get relief from the harm they suffer when they are caught.
- If you were a criminal attorney and your client was convicted of a crime, you might be able to use the "actual innocence" defense. Normally, in order for your client to succeed in their suit against you, they will have to show that but for your negligence the outcome of the case would have been different. However, in some states, as it relates to criminal trials, the courts require the plaintiff to jump and extra hurdle and prove that they were actually innocent of the initial criminal charges in order to succeed in a legal malpractice case. Therefore, if the plaintiff cannot prove actual innocence, you may have a defense to the lawsuit.
Draft your answer.When you have defenses to liability, or when you don't think the plaintiff can prove their case against you, you should always respond to a lawsuit by drafting an answer. An answer is a formal statement of your defenses. You will first go allegation by allegation and admit or deny the claims the plaintiff made in their complaint. After that you will have an opportunity to raise any defenses you feel are relevant and that you can prove.
- Be aware that some defenses must be raised in your response or you will be deemed to have waived them. If you forget to raise a defense of contributory negligence, for example, you will not be able to use that defense during trial.
Make cross-complaints.In addition to drafting a responsive pleading, you might also choose to make a cross-complaint against the plaintiff. A cross-complaint is similar to filing your own lawsuit against the plaintiff by claiming they were at fault or that they did something wrong.
File your papers.Your answer and any other responsive pleadings must be filed with the court within a certain time period after you were served with a copy of the plaintiff's complaint and summons. In most states, you will have 30 days to respond.
- When you file your papers, you will have to pay a filing fee. If you cannot afford the fee you will be able to ask the court for a waiver.
serve the plaintiff.Either before or after you file your response with the court, you will have to serve the plaintiff with a copy of your answer. When you serve the plaintiff, be sure you have someone over the age of 18 that is not related to the case doing it. The server will be able to either hand the plaintiff copies personally or can send them in the mail. Once service is complete, the server will fill out a proof of service form that you will then file with the court.
Conducting Pretrial Actions
Take part in discovery.One of the first pretrial stages of litigation is discovery. During discovery you and the plaintiff will have an opportunity to collect and exchange information about the case. You will be able to interview witnesses, gather facts, found out what the plaintiff is going to say, and assess the strength of your case. During discovery you will be able to use the following tools:
- Informal discovery, which might include interviewing witnesses, gathering publicly available documents, and taking photos.
- Depositions, which are in-person interviews conducted under oath. The answers given in depositions can be used in court.
- Interrogatories, which are written questions posed to the plaintiff or other witnesses that must be answered under oath.
- Requests for documents, which allow you to request documents that are not publicly available. This might include, emails, text messages, and internal memos.
- Requests for admission, which are written questions requiring the plaintiff to admit to a fact or to the genuineness of a document.
File a motion for summary judgment.After discovery concludes, you should consider filing a motion for summary judgment. A summary judgment motion asks the court to end the litigation immediately and rule in your favor. To be successful you will have to show that there is no genuine issue of material fact and that you are entitled to judgment as a matter of law. In other words, you will have to persuade the court that, even if all assumptions were made in the plaintiff's favor, it would be impossible for them to win given the facts of the case. You will be able to submit affidavits and evidence to back up your claims.
- The plaintiff will try to defend against your motion by persuading the court there are facts in dispute that need to be hashed out at trial.
Attempt to settle your case.At this point in the litigation, if the case has not been resolved, you might want to consider entering into settlement discussions with the plaintiff. During informal negotiations, you and the plaintiff will sit down with counsel and discuss the case and ways to resolve it. If a deal cannot be reached, you might consider the following alternative dispute resolution processes:
- Mediation, which involves having a neutral third party sit down with both parties to discuss common ground and areas of agreement. The third party is not there to take sides or provide opinions but is only there to help facilitate the conversation.
- Arbitration, which involves having a third party arbitrator act like a judge. He or she will listen to evidence from both parties and will then take sides and draft an opinion.
Attend the final pretrial conference.If a settlement cannot be reached, you and the plaintiff will take part in one final pretrial hearing. The hearing will allow the judge to ask questions about what will be presented at trial and how the trial will proceed. The judge will also want to get an idea of how long the trial is expected to last.
- Be careful to bring everything with you to this hearing and lay it all out for the judge. Often, a judge will not allow anything to be discussed at trial that wasn't already brought up at this conference.
Going to Trial
Give an opening statement.Your trial will begin when the plaintiff makes their opening statement to the court. An opening statement should be a short synopsis of the case and a road map of how things will proceed. You should not discuss evidence at this time and you should keep your remarks short and sweet.
- Once the plaintiff has made his or her opening remarks, you will have an opportunity to do the same. Some courts will allow you to hold off on making your opening statement until it is your turn to present your case (i.e., after the plaintiff has rested).
Cross-examine the plaintiff's witnesses.The plaintiff will get to present their case first. When the plaintiff calls witnesses to the stand to testify, you will have an opportunity to cross-examine every one of them. During cross-examination, you will try to discredit the witness's testimony by showing it was biased or untruthful.
Present your case.When the plaintiff rests, you will be able to present your case to the court. You will call witnesses and present physical evidence. All of your effort should be put towards proving a defense to liability or by showing the court that the plaintiff did not prove all of the elements of legal malpractice.
Deliver your closing argument.After you and the plaintiff are done presenting the case, you will both have an opportunity to make a closing argument. The plaintiff will go first and you will follow. Your closing argument should tie the whole trial together, reference important pieces of evidence, and provide a final synopsis of why you should not be held liable. This is the last opportunity the court will have to hear your side of the story.
Await the verdict.Once the trial is over, the court will adjourn and make a decision. If you had a jury trial, the jury will deliberate until a decision is reached. If you had a bench trial (i.e., no jury), the judge will analyze the evidence and make a decision. If you win, judgment will be entered in your favor and you will not have to pay the plaintiff any damages.
Confirm everything in writing.The best way to stay out of court is to avoid potential malpractice altogether. While you can never guarantee you won't be sued, there are some things you can do to help decrease your chances. One of the most important things you can do to avoid malpractice is to keep everything in writing. This provides a paper trail you can use if your services should ever be called into question. Common things that should be in writing include:
- Fee arrangements
- Consent forms
- Representation agreements
- Lawyer client correspondence
Be open and honest with your clients.Most malpractice lawsuits arise because a client is frustrated with the way they have been treated by their lawyer. You can avoid this frustration by treating your client with the respect they deserve. You should avoid promising a specific outcome, you should never ignore your client, and you should never prejudice your client.
- If you can be open and honest with your client, they will be less likely to think they were taken advantage of and it will allow you to manage the client's expectations.
Keep a detailed log of the work you do for every client.Another common reason clients sue their lawyers is over fees. If you are not upfront with your client, or you do not have a fee arrangement in writing, your client might think you charged them more than you should have. In addition to the bills you send your clients, you should also keep your own detailed log that keeps track of all the work you do for every client. When you do this, you ensure all of your time is accounted for in case you are ever questioned.
Video: Win in Court Without an Attorney
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