Richard M. Zielinski

2014 National Legal Malpractice Conference, American Bar Association

April 2014

National Legal Malpractice Conference

April 30 - May 2, 2014

Westin Copley Place

Boston, MA

"You Claim You Would Have Gotten a Better Result? Prove it": Causation Issues In "Lost Opportunity" Malpractice Cases

Some of the most challenging malpractice cases involve claims that the lawyer’s mishandling resulted not in a specific out of pocket loss or adverse jury verdict, but rather a missed opportunity for a deal—or a better deal. If a client loses at trial, he may say that he lost the chance to settle with his opponent; if the client settled, he may say that, with proper lawyering, he should have gotten better terms. A business client may claim that her negotiating position in a deal would have been stronger but for her lawyer’s malpractice. Attendees will learn from a series of real life vignettes illustrating the difficult causation issues presented by these claims, including determination of the "settlement value" of a case or a deal through expert testimony, testimony by the malpractice plaintiff’s former adversary about what might otherwise have been agreed to, and shifting the burden of proof from plaintiff-client to the lawyer/defendant.

Richard M. Zielinski, Director, Goulston & Storrs PC, Boston, MA

William L. Boesch, Shareholder & Director, Sugarman, Rogers, Barshak & Cohen, P.C., Boston MA

Willard C. Shih, Shareholder, Wilentz, Goldman & Spitzer P.A., Woodbridge, NJ