Fishman v. Brooks

Citation396 Mass. 643,487 N.E.2d 1377
Parties, 54 USLW 2466 Irving FISHMAN v. Larimore S. BROOKS.
Decision Date30 January 1986
CourtUnited States State Supreme Judicial Court of Massachusetts

John B. Connarton, Jr. (John Egan, Boston, with him), for plaintiff.

Thomas Hoffman, Boston, for defendant.


WILKINS, Justice.

This appeal principally concerns the propriety of certain evidentiary rulings in the trial of a counterclaim for malpractice filed by Larimore S. Brooks against Irving Fishman, a member of the bar of the Commonwealth. Brooks persuaded the jury that (a) Fishman was negligent in representing Brooks in an action for personal injuries Brooks sustained when a negligently operated motor vehicle collided with the bicycle he was riding; (b) as a result of Fishman's negligence, Brooks was obliged to settle the personal injury action; and (c) the damages which Brooks should have recovered in that action were substantially greater than the amount of the settlement.

Fishman commenced this action by filing a complaint for declaratory relief against Brooks, who, after the settlement, had notified his health care providers that the case had been settled and they would be paid. Fishman alleged that Brooks had violated the terms of an agreement between them which would have given Fishman, as an additional fee, any amount he saved in negotiating settlements of Brooks's medical bills. Fishman voluntarily abandoned this claim shortly before Brooks filed his counterclaim. In addition to his malpractice claim, Brooks successfully asserted an abuse of process claim based on Fishman's commencement of this action. On our own motion, we transferred Fishman's appeal to this court, and we now affirm the judgment in favor of Brooks.

We need recite the facts only in general terms in order to present the legal issues raised in Fishman's appeal. On the night of September 25, 1975, Brooks suffered serious injuries when a motor vehicle traveling in the same direction struck him as he rode his bicycle in the breakdown lane of Route Nine in Newton. Brooks wore dark clothing, and his bicycle may have lacked proper light reflectors. Shortly after the accident Brooks retained Fishman to represent him.

The jury would have been warranted in finding various facts bearing on Fishman's negligence. Fishman had not tried a case of any sort since 1961. His part-time solo practice mainly involved real estate conveyancing. He did not commence suit until sixteen months after the accident and, for no apparent reason, did not obtain service on the driver defendant for more than ten months after filing the complaint, a delay which, by his own admission, interfered with his handling of the case. Fishman made no effort to examine the motor vehicle or to investigate in any detail what the driver had been doing immediately prior to the accident. He engaged in no useful pretrial discovery. Instead, he relied on information the driver's insurer volunteered. He did not learn, for example, that shortly after the accident the driver had stated that she neither saw Brooks nor the bicycle before her vehicle struck them.

In April, 1978, a Federal District Court judge assigned the case for trial on June fifth. Fishman thereupon consulted an able attorney experienced in personal injury litigation about referring the case to him, but the negotiations failed because Fishman would not agree to an even division of his one-third contingent fee.

In April, 1978, Fishman made a settlement demand of $250,000 on the driver's insurer. At various times the driver's insurer made offers of settlement. Fishman did not know what the available insurance coverage was. He told Brooks that only $250,000 was available when, in fact, $1,000,000 was available. Brooks rejected several offers of settlement, although Fishman had recommended that Brooks accept them. Finally, shortly before trial, after Fishman had told Brooks that he could not win if he went to trial, Brooks agreed to settle his personal injury claim for $160,000, knowing that Fishman was not prepared to try the case.

In the trial of this case, the jury answered special questions concerning the malpractice action. They found that Fishman was negligent in his handling of the personal injury action and that Brooks was damaged thereby in the amount of $525,000. The driver's negligence was 90% and Brooks's negligence was 10% of the contributing cause of his injuries. The jury also returned a verdict in the amount of $10,000 on Brooks's abuse of process claim.

The judge entered judgment on the malpractice count by reducing Brooks's damages ($525,000) to reflect (a) his contributory fault (10% or $52,500), (b) the amount of medical expenses paid from the settlement ($32,000), and (c) the amount Brooks received personally from the settlement ($90,000) and by allowing interest on the balance. No reduction was allowed for Fishman's counsel fees collected in the earlier action.

An attorney who has not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of the average qualified practitioner. See McLellan v. Fuller, 226 Mass. 374, 377-378, 115 N.E. 481 (1917); Caverly v. McOwen, 123 Mass. 574, 578 (1878); Varnum v. Martin, 15 Pick. 440, 442 (1834); Glidden v. Terranova, 12 Mass.App.Ct. 597, 598, 427 N.E.2d 1169 (1981); Barry, Legal Malpractice in Massachusetts, 63 Mass.L.Rev. 15, 17 (1978). An attorney who violates this duty is liable to his client for any reasonably foreseeable loss caused by his negligence. See McLellan v. Fuller, supra; Glidden v. Terranova, supra at 600, 427 N.E.2d 1169. Thus an attorney is liable for negligently causing a client to settle a claim for an amount below what a properly represented client would have accepted. See, e.g., Edmondson v. Dressman, 469 So.2d 571, 574 (Ala.1985); Cook v. Connolly, 366 N.W.2d 287, 292 (Minn.1985); Rodriguez v. Horton, 95 N.M. 356, 359-360, 622 P.2d 261 (Ct.App.1980); Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 117-118, 362 N.W.2d 118 (1985). See generally R. Mallen and V. Levit, Legal Malpractice § 580, at 723-726 (2d ed. 1981). Although properly informed of all the relevant law and facts, an attorney may nevertheless cause a client to settle a case for an amount below that which competent counsel would approve. As the authorities cited above tend to show, such a situation is more theoretical than real. 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 a settlement not reasonable in the circumstances.

A plaintiff who claims that his attorney was negligent in the prosecution of a tort claim will prevail if he proves that he probably would have obtained a better result had the attorney exercised adequate skill and care. McLellan v. Fuller, supra 226 Mass. at 378, 115 N.E. 481. Brooks's case was tried on this theory, and thus first involved the question of Fishman's negligence in the settlement of Brooks's claim and, second, if that were established, the question whether, if the claim had not been settled, Brooks would probably have recovered more than he received in the settlement. This is the traditional approach in the trial of such a case. The original or underlying action is presented to the trier of fact as a trial within a trial. If the trier of fact concludes that the attorney was negligent, a matter on which expert testimony is usually required (see Pongonis v. Saab, 396 Mass. 1005, 486 N.E.2d 28 [1985] ), the consequences of that negligence are determined by the result of the trial within the trial. Thus, in the trial within the trial in this case, the jury had to determine whether the driver negligently caused Brooks's injury and, if so, the damages Brooks suffered and the comparative fault of Brooks and the driver. On this approach to the trial of a legal malpractice action, except as to reasonable settlement values, no expert testimony from an attorney is required to establish the cause and the extent of the plaintiff's damages. 1

1. Over Fishman's objection, the judge properly admitted expert testimony from an experienced tort lawyer and an experienced claims adjuster as to the reasonable settlement value of the underlying claim at the time it was settled. The attorney testified that such a case normally would have settled for $450,000 to $500,000. The claims adjuster estimated that such a case would have settled for $400,000 to $450,000.

Fishman argues that the settlement value of the underlying action was not a proper measure of damages. Brooks does not assert that it was; rather, he argues that proof of the fair settlement value of the underlying action was an important element of his case against Fishman. If, in spite of Fishman's negligent preparation of the personal injury case, settlement was made in an amount that properly prepared counsel reasonably could have recommended, Brooks would have suffered no loss from Fishman's negligence. Consequently, 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. See Rodriguez v. Horton, 95 N.M. 356, 360, 622 P.2d 261 (Ct.App.1980). In precisely these terms and without objection from Fishman, the judge submitted a special question to the jury as to whether $160,000 was a fair settlement. The reasonableness of the $160,000 settlement was relevant, therefore, and on that question expert testimony was appropriate. See Williams v. Bashman, 457 F.Supp. 322, 328 (E.D.Pa.1978); Duncan v. Lord, 409 F.Supp. 687, 693 (E.D.Pa.1976); Warwick, Paul & Warwick v. Dotter, 190 So.2d 596, 598 (Fla.App.1966); Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 116, 362 N.W.2d 118 (1985). Cf. Worden v....

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