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Mediation tip: 2nd District Court of Appeal dismisses a legal malpractice case

In a published decision, the 2nd District Court of Appeal upheld the grant of a motion for summary judgment, dismissing a legal malpractice case brought by a former client against her lawyers. She had rejected a settlement offer in a "putative spouse" family law case, after her lawyers had "strongly" advised her to take the settlement due to low chances of her prevailing. She told her lawyers to stop working on the settlement agreement, fired them and hired other counsel. Her new counsel also strongly urged her to take the settlement, which she nonetheless rejected. Her opponent, the "putative spouse" filed a motion to dismiss her 4th Amended pleading, which was granted. The plaintiff lost out on a $605,000 settlement, and received nothing. (Moua v Pittullo, Howington, etc, 2014 DJDAR 9577). This case is applicable to all parties in mediation, and clearly demonstrates the importance of the "bird in the hand". The Appellate Court stated that "Appellant's ultimate decision not to settle, in spite of her attorneys' advice that she do so, was hers alone, and the consequences of that decision are likewise hers alone." There was simply put, no malpractice other than her own. Most people come to mediation represented by counsel. Hopefully they feel trust and confidence in their lawyer, and respect the advice their lawyer gives. There are exceptions of course where the lawyer is not acting in the client's best interest, or lacks the requisite competence, but, that is the exception rather than the rule. I have mediated cases where a party rejected their lawyer's advice to settle. In two such cases, the lawyers had informed their client that after the mediation they would no longer be able to represent them, because of the breakdown of the attorney-client relationship. (In one of those, the client finally came around and did settle, in the other one it did not settle, and, since I followed that case until the "bitter end", I felt hopeless as continued efforts to resolve the case fell on deaf ears; finally, the case went to trial. Plaintiff lost and came away with nothing except a lot of costs incurred during the litigation, and a cost bill from the other side. The lesson here is, while it is important for every party to be able to express themselves and have opinions about their case and settlement value, it usually behooves the client to take to heart their lawyer's advice, (and perhaps the mediator's recommendation). If they do not feel comfortable with that advice, get a second opinion. But at least give consideration to what their legal expert is recommending before the offer vanishes.

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