Leveling the Legal Malpractice Playing Field: Reverse Bifurcation of Trials The Fourth Annual Symposium on Legal Malpractice and Professional Responsibility.

Authors

Dwayne J. Hermes
Jeffrey W. KempFollow
Paul B. MooreFollow

Abstract

The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for an assumed “Breach of Implied Warranty of Perfect Result.” These claims represent a shift in expectations which threatens to upset the balance between negligence and strict liability established and proven by decades of experience and tradition. In the face of shifting public expectations, routine procedures fail to bring the distinction between duty and results into focus, often holding the attorney to a higher standard of conduct than the law requires. The very nature of a legal malpractice trial is sufficiently unique to warrant special procedural attention. Innovative procedures are necessary to level the legal malpractice playing field and shield attorneys from liability for “Breach of the Implied Warranty of Perfect Result.” A reverse bifurcation method in which a plaintiff-client must first prove the validity of his claim or defense in the underlying case honors the principle that an attorney is not a guarantor of results and is presumed to have competently represented his or her client.

Publisher

St. Mary's University School of Law

Recommended Citation

Dwayne J. Hermes, Jeffrey W. Kemp & Paul B. Moore, Leveling the Legal Malpractice Playing Field: Reverse Bifurcation of Trials The Fourth Annual Symposium on Legal Malpractice and Professional Responsibility., 36 St. Mary's L.J. (2005).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol36/iss4/2