civil-law
Should I pursue a lawsuit for legal misconduct?
<p>This question is about a complex situation that I will try to keep as concise as possible.
I was named trustee for a moderate sized trust. The attorney who drafted the trust did so in such a way as to alter the intent of the deceased.  I believe he did this intentionally.  The same attorney lied on the witness stand.  His  testimony was directly countered by a witness whose veracity was beyond question.  The judge for the trial had already decided the outcome of the trial before it started.  This  is known because of statements he made to attorneys before trial.  The judge also actively advocated on behalf of the plaintiff, was very biased as well.  The net result was, I was removed as trustee.  An accounting was ordered.  The Judge retired.   Jump ahead 18 months.  A trial was set because of objections to my accounting.  After 3 days of trial,  the new judge over ruled all objections.  It was determined that the attorney for the trust I had hired had given me poor advice, bordering on malpractise.  My current trial attorney had, unfortunately, neglected to enter the exhibit that supported this conclusion as evidence.  Even though the judge had the information, he said he was unable to use it as it was not entered as evidence.  So I was surcharged these fees,  which is a high 5 figure.  This judge also stated that he was satisfied in all respects with my performance as trustee and expressed surprise that I was removed.  Now, my current trial attorney , the one who neglected to admit the exhibit, wants to go after the original attorney for those fees on a contingency basis, his fee to be 50% of the recovered money.  That would leave me with nothing except still owing the trust the other half of those fees.  I don't know where to go with this.
There is a lot more to the story, but I have tried to be concise.  Any ideas?</p>

<blockquote>
  <p>The judge for the trial had already decided the outcome of the trial
  before it started. This is known because of statements he made to
  attorneys before trial. The judge also actively advocated on behalf of
  the plaintiff, was very biased as well.</p>
</blockquote>

<p>You can't sue any of the judges, who have absolute immunity from legal liability.</p>

<blockquote>
  <p>The attorney who drafted the trust did so in such a way as to alter
  the intent of the deceased.</p>
</blockquote>

<p>Generally speaking, a trustee does not have standing to sue an attorney for failing to draft the trust in a manner that reflects the intent of the grantor of the trust. If anyone could, it would be the probate estate of the deceased.</p>

<blockquote>
  <p>The same attorney lied on the witness stand.</p>
</blockquote>

<p>Statements made in a court proceeding are not actionable.</p>

<blockquote>
  <p>After 3 days of trial, the new judge over ruled all objections. It was
  determined that the attorney for the trust I had hired had given me
  poor advice, bordering on malpractise.</p>
</blockquote>

<p>For this advice to be actionable, it would be necessary to show that you wouldn't have been removed and surcharged, but for the malpractice of your attorney. But, the attorney might plausibly argue that given the fact that the case was clearly prejudged, that the advice he gave you wouldn't have made a difference in any case.</p>

<blockquote>
  <p>My current trial attorney had, unfortunately, neglected to enter the
  exhibit that supported this conclusion as evidence. Even though the
  judge had the information, he said he was unable to use it as it was
  not entered as evidence. So I was surcharged these fees, which is a
  high 5 figure.</p>
</blockquote>

<p>This attorney may have malpracticed, but it isn't a clear case. He probably could have made a motion to reconsider that could have remedied this failure to introduce evidence, or an appeal that might have been successful. On the other hand, he can argue that but for the first attorneys' malpractice, this wouldn't have been an issue, so liability should at least be shared if not entirely transferred to the first attorney, and that subsequent uncertain litigation options not exercised shouldn't count against you (or him).</p>

<blockquote>
  <p>my current trial attorney , the one who neglected to admit the
  exhibit, wants to go after the original attorney for those fees on a
  contingency basis, his fee to be 50% of the recovered money. That
  would leave me with nothing except still owing the trust the other
  half of those fees.</p>
</blockquote>

<p>It is often the case in life that you can't be made whole from someone else's wrongs. Attorney malpractice cases are almost always of this variety, since you generally can't recover your attorneys' fees in an attorney malpractice case, only your damages. Someone, whether the current attorney or a third attorney, is going to charge a fee to sue someone for malpractice.</p>

<p>The benefit of going with the current attorney is that he is up to speed and is willing to take the case on a contingency basis, albeit a steep one. The downside is that the current attorney will not sue himself and may have liability as well, that the current attorney has made a key mistake once and could do so again, and that the current attorney may be conflicted out of the case as a potentially responsible party and as a potential witness at some point. </p>

<p>So, if you could find someone other than your current attorney to bring a malpractice case on a contingent basis, that would probably be better for you. Suing two attorneys instead of one also increases the likelihood that you can collect whatever judgments you secure. But, it may be hard to find someone to represent you in a case like that since the amount of time involved in a case like this for a plaintiff's attorney is very substantial and also requires considerable outlays for expert witness fees.</p>

<p>All of this said, however, attorney malpractice cases are very difficult to prevail in since you must prove not only malpractice but also a "case within a case" to show that you would have gotten a different and better result but for the malpractice. </p>

<p>Most of the time, you will end up settling for only a portion of your damages prior to trial to avoid the cost of litigation and the risk of a defense verdict. So with a 33% to 50% contingent fee, your net recovery might realistically often be in the 1/4 to 1/3 of your losses in a decent settlement equal to half of your actual losses.</p>

<p>A settlement like this is better than a poke in the eye with a sharp stick, but no attorney malpractice case is going to make you whole. And, you may decide that the time and distraction involved in litigating an attorney malpractice case may not be worth the trouble to you.</p>
