One defense in a legal malpractice case is that the lawyer exercised judgment (usually at trial) and, therefore, he should not be liable for legal malpractice.
One way to explain this is to make an analogy to the role of a baseball manager. In my example, the manager’s team is leading 5-4 and there are two outs and two runners on base. The manager elects to intentionally walk the other team’s clean up hitter, Jones. He elects to have his pitcher pitch to the next hitter in the line up. Unfortunately, that hitter hits a home run (a grand slam) and four runs cross the plate. The angry fan (or newspaper columnist) says “He should not have intentionally walked Jones to pitch to Brown. If he had only done that, we would have won the game.” This is a classic case of a judgment call gone wrong. The manager made a decision after carefully weighing the odds and it turned out poorly. That is not baseball malpractice and it isn’t legal malpractice either if the lawyer elects not to call the criminal defendant to the stand or elects not to call an expert witness who will only support the State’s theory of the evidence. The key inquiry is whether or not the lawyer actually weighed the possible outcomes before he made his decision. In other words, was it a judgment call, or just a blunder?
In Schaeffer v. Thompson, No. 2180834 (Court of Civil Appeals of Alabama, February 20, 2020), the plaintiff claimed that the lawyer committed malpractice in the underlying case. Plaintiff obtained testimony by an expert witness that the lawyer’s work did not meet the standard of care.
The defendant lawyer responded with a summary judgment motion which argued that his decisions at trial could not be the basis of a malpractice action. The trial court granted summary judgment, but the appellate court reversed. The opinion contains an excellent and thoughtful discussion of the judgment call defense:
Initially, the lawyer’s defense is simplistic – he claims that he can’t be sued for malpractice for trial decisions. That is not the correct standard. To use the judgment call defense, the lawyer would have to show that he actually made a judgment call and that he evaluated all of the possible outcomes before he made the decision. The appellate court found that he did not meet his burden to obtain summary judgment and reversed the judgment.
“In actions under the ALSLA, a party must present expert testimony to establish the standard of care unless that standard is within common knowledge.” Barney v. Bell, 172 So. 3d 849, 855 (Ala. Civ. App. 2014) (citing Valentine v. Watters, 896 So. 2d 385, 393 (Ala. 2004)). In Barney, this court held that, because the attorneys, who were defendants in a legal-malpractice case, did not “present any expert testimony as to the standard of care or the propriety of their conduct” in support of their summary-judgment motion, the attorneys “did not make a prima facie showing that they were entitled to a summary judgment,” 172 So. 3d at 855-56, and, thus, that the trial court had “erred in entering a summary judgment in favor of [the attorneys] on that claim.” 172 So. 3d at 856. Similarly, in Free v. Lasseter, 31 So. 3d 85, 90 (Ala. 2009), our supreme court reasoned:
“Lasseter and the firm presented no argument or evidence as to the dispositive issue of the standard of care under § 6-5-572(3)a.[, Ala. Code 1975,] or the breach of that standard under § 6-5-572(4)…. It is clear that the burden never shifted to Free to present substantial evidence of her legal-malpractice claim. Because the motion did not comply with the requirements of Rule 56(c), Ala. R. Civ. P., summary judgment was not proper.”In the present case, Thompson, like the attorneys in Barney and Free, failed to present any evidence, expert or otherwise, indicating that he did not breach the standard of care in his representation of the plaintiffs in the underlying case. Indeed, the only evidence he offered in support of his first summary-judgment motion was the transcript of the trial in the underlying case.
In his first summary-judgment motion, Thompson cited several cases holding that a decision concerning trial strategy cannot form a basis for an inadequate-assistance-of-counsel claim. Thompson also cited Herston v. Whitesell, 348 So. 2d 1054, 1057 (Ala. 1977), for the propositions that, “while [an attorney’s] advice may be wrong …, it may nevertheless be reasonable,” and that “[a]n attorney `is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction.'” (Quoting Goodman v. Walker, 30 Ala. 482, 496 (1857).) In Herston, the supreme court also specifically stated that “[w]hether the [attorneys] breached their duty to use reasonable care and skill under the alleged facts of this case is for the jury to decide.” 348 So. 2d at 1057. In Herring v. Parkman, 631 So. 2d 996, 1002 (Ala. 1994), the Alabama Supreme Court, relying on Herston, reasoned:
“[The attorney’s] recommendation that [certain witnesses, including the plaintiffs in the case,] not testify … was based on a decision within the province of [the attorney’s] exercise of judgment as to trial strategy. Although a lawyer owes his client a duty to exercise `such reasonable care and skill and diligence as other similarly situated legal service providers in the same general line of practice in the same general area ordinarily have and exercise in a like case,’ Ala. Code 1975, § 6-5-580(1), `[a]n attorney “is not answerable for an error in judgment upon points of … nice or doubtful construction.”‘ Herston v. Whitesell, 348 So. 2d 1054, 1057 (Ala. 1977) (quoting Goodman v. Walker, 30 Ala. 482, 496 (1857)). `The duty of using reasonable care and skill applies to the manner in which the attorney pursues the case and the law which he applies to the case.’ Herston, 348 So. 2d at 1057. Indeed, `the decision not to call a particular witness is usually a tactical decision’ for the attorney. Luke v. State, 484 So. 2d 531, 533 (Ala. Crim. App. 1985). [The attorney] stated that he advised [the plaintiffs] not to testify because he did not want to subject either of them to cross-examination or impeachment by the prosecution. This choice of trial strategy, although it did not prevent a conviction, will not support a malpractice claim. [The plaintiffs] presented no evidence that [the attorney] failed to use reasonable care and skill in conducting their defenses.”In the present case, however, Thompson did not introduce an affidavit in support of his first summary-judgment motion asserting his reasoning for the strategic decisions that he had made at the trial in the underlying case. In fact, as noted previously, the only evidence he submitted in support of his first summary-judgment motion was the transcript of the trial in the underlying case. Therefore, we conclude that Thompson failed to establish that his decisions in the trial of the underlying case were tactical such that they would not support a legal-malpractice claim.
Comment: this is an excellent discussion of the somewhat subtle judgment call defense.
Should you have a legal malpractice issue, do not hesitate to contact me to discuss that issue.
Ed Clinton, Jr.