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Legal Malpractice Experts to Prove a Reasonable Settlement Value in the Underlying Case

Fishman v. Brooks, 396 Mass. 643; 487 N.E.2d 1377 (1986) (PDF)

MA Underlying Personal Injury Action

Student Contributor: Natalie Resto

Facts: Brooks hired Fishman to represent him in an action for personal injuries he sustained when a negligently operated motor vehicle collided with the bicycle Fishman was riding. Fishman did not commence the personal injury suit until 16 months after the accident, and did not obtain service on the driver defendant for more than 10 months after filing the complaint. He also made a settlement demand of $250,000 on the driver’s insurer when the insurance coverage was $1 million. Shortly before trial, after Fishman told Brooks that he could not win if he went to trial, Brooks agreed to settle his personal injury claim for $160,000. The client sued the attorney for malpractice. The jury found for clients and the attorney appealed.
Issue: Whether the trial court properly admitted the testimony of an adjuster and tort lawyer as to liability and causation?

Ruling: The court affirmed the lower court’s holding. It found that expert testimony from an experienced tort lawyer and an experienced claims adjuster as to reasonable settlement value of underlying claim was properly admitted, and that

evidence of the fair settlement value of the underlying claim was admissible to prove not only Fishman’s negligence but also that his negligence caused a loss to Brooks. Id. at 648.

Lesson: An attorney is liable when he causes a client to settle a claim for an amount below what a properly represented client would have accepted. The court states that the typical case of malpractice liability for an inadequate settlement involves an attorney who, having failed to prepare his case properly or lacking the ability to handle the case through trial (or both), causes his client to accept an unreasonable settlement.

EDITOR’S NOTE: With our thanks to Westlaw, Thomson Reuters for permitting the case hyperlink.

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Posted in: Expert Witnesses, Massachusetts, Proximate Cause