Over the past few years, one of my primary areas of practice has been professional liability. I have represented lawyers and accountants in a wide variety of matters. These cases always provide unique challenges. The claims are negligence based. While negligence is often equated with carelessness, there is more to it. The plaintiff first needs to prove that my client represented them. This is often not disputed. Next, the plaintiff needs to show that my client had a duty to perform a certain task for them. While defining the scope of a professional’s duty should be an easy task, often agreements are not clear as to responsibilities and goals. A large portion of the matters I handle could be avoided if the relationship between the professional and the client in the underlying matter was clearly laid out and communicated.

The plaintiff also needs to demonstrate that my client failed to live up to their legal duty, causing them harm. To prove this “breach” a plaintiff needs to demonstrate what the standard of care was for my client, and that their actions deviated from that standard of care. The plaintiff then needs to prove that the deviation caused them actual damages. This seems simple. But to win, a plaintiff needs to prove that “but-for” the professional’s actions they would have obtained a better result in their underlying case. This is the so-called “case-within-the-case.” For each professional I represent, I need to learn as much about their particular area of business as possible. I need to evaluate not only whether the professional arguably made a mistake, but more importantly, whether that mistake made a difference in the plaintiff’s underlying matter. If the plaintiff’s chance of success in the underlying matter was already terrible, the alleged mistake might not have made any difference in the outcome. Making this evaluation involves working closely with my client, who invariably knows more about their practice area than I do. It also involves hiring experts early in the litigation to determine what the standard of care is, whether the client violated it, and whether that violation made any difference.

The importance of working in partnership with my client and our experts from an early stage was readily apparent in one of my recent victories. After several years of litigation in federal and state court, I convinced a judge on the first day of a scheduled two-week trial, that the case against my client should be dismissed. The dismissal was, in large part, based on the plaintiffs’ failure to prove that my client’s actions, during a commercial real estate closing, caused them any damage. By working closely with my client and our expert, I became fluent in commercial real estate, and was able to develop a compelling argument that the plaintiffs had no chance at trial of proving they were unable to sell their property because of my client’s supposed mistake.