April 21, 2011
The Mississippi Supreme Court reversed the grant of summary judgment to two attorneys sued for legal malpractice. The attorneys had represented the 16 former clients who were plaintiffs in mass-tort litigation. The suit claims that the attorneys breached fiduciary obligations by "prematurely settling their cases in order to maximize attorney fees."
The plaintiffs had produced as a witness an attorney who had been associated with the defendants and then been fired. The witness would testify that he "had settled numerous similar cases for much more than the [plaintiffs] received. The lawyer also produced a settlement document he had prepared, in part, by using another lawyer's matrix as a go-by." The trial court excluded the evidence, held that the plaintiffs "were required to, but could not, prove they would have won their cases at trial" and granted summary judgment.
The court here ruled that the attorney's evidence was admissible (although the matrix itself is hearsay) and that the plaintiffs are not required to prove they could have won the case to establish the breach of fiduciary duty. Unlike a legal malpractice case based on negligence, plaintiffs pursuing a fiduciary breach theory need not prove they would have prevailed in the underlying case. (Mike Frisch)
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