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St. Mary's Law Journal

Jennifer Knauth

Abstract

What happens when a lawyer becomes a defendant in a legal malpractice case? Much has been written about the shortcomings of the adversary system as measured against its theoretical goals and assumptions. One significant assumption underlying the adversary system is that there is an equal playing field among litigants. The reality of a legal malpractice case is at odds with this ideal. The prevailing cultural bias against lawyers as gatekeepers and beneficiaries of the legal system permeates every aspect of a legal malpractice case. One effect of this cultural bias is the lawyer-defendant's very personal and disproportionate experience with the shortcomings of the adversary system in a legal malpractice case. The adversary system has been described as civilized warfare. The system eventually yields a decision, but one that usually falls short of the participants' respective perceptions of fairness and justice. The subjective nature of the concepts of fairness and justice is in contrast with the ideal of the adversary system that presupposes an objective standard of fairness and justice that will yield the one just and fair outcome upon a given set of facts and circumstances. In addition, the cost and time required to obtain the decision leave even the prevailing party less than fully satisfied with the overall result. In a legal malpractice case, the lawyer's story initially has less credibility due to its source alone. Thus, the time and cost of defense soar because of the need to develop the full context in which the underlying representation occurred.

Publisher

St. Mary's University School of Law

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