12 Trial Lawyer • Fall 2023 months later then it did, that could support a comparative fault defense. There must be some negligent action by the client that caused or contributed to the negligence of the attorney. In contrast, if after the attorney missed the deadline to send the notice of termination, the client could have bought out the lease for $500,000, but chose to litigate the matter, leading to various litigation costs of $300,000 and a $1,000,000 verdict. The attorney could argue in the subsequent malpractice action that the client failed to mitigate their damages because they could have resolved the issue for $500,000 in contrast to $1,300,000. The importance of properly identifying and correcting the defense can be instrumental in avoiding juror confusion and potential reversible error. If a comparative fault defense is allowed, a verdict form requires the jury to determine the damages, then apportion fault between various parties (including the plaintiff). In contrast, if the jury is considering a failure to mitigate defense, this simply goes to the determination of total damages. There is no apportionment between parties. In the example above, imagine if the jury is instructed on comparative fault rather than failure to mitigate damages. The client’s conduct did not cause or contribute to the initial injury, but if the total damages are alleged to be $1,300,000 and the attorney argues that the client is “comparatively at fault” for $800,000 of that amount it could lead to an improper defense verdict because the plaintiff would be considered 62% “at fault.” This concept goes beyond legal malpractice and professional malpractice generally, in that it could be utilized improperly in nearly any negligence case. Conclusion As attorneys, we are always looking to provide the best representation Legal Questions Continued from p 11
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