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80% of Lawyers Are Sued for Malpractice Why is That ? And What to Do about it.
Brian A. Hampton Brian A. Hampton
Arlington, VA
Tuesday, June 22, 2021



   Breaking News Feature: How to Deal with Lawyers

           80% of Lawyers Are Sued for Malpractice

            Why is That ?  And What to Do about it.

                                                                   By Brian Hampton

     What is the difference between a lawyer and a skunk laying in the center of the road?

    There are skid marks in front of the skunk.

    How do you start a whole new civilization?

   First, you kill off all the lawyers.

   And so on.  Why are there so many lawyer jokes? 

   Answer:  Because there are so many lawyers.

   Have you had any problems with lawyers in your life?  If you have not, you have lived a charmed life.  According to the American Bar Association, 80% of lawyers have been sued for malpractice.  Be prepared to take effective action when needed.

                            Attack!  Attack!  Attack!

   The mantra of the Infantry in which I served was to lay down an overwhelming field of fire.  In other words, Attack!  Attack!  Attack! Same as when you are taking on the government.

    And what we are talking about is both having your lawyer attack the other side and pushing your own lawyer, find out how they are pushing back for you and learning to play hardball to protect yourself.  We will talk about the lawyers who may at some time oppose you, but let's start with your own lawyer.


    There are many similar law firms out there.  Dewey Cheatem & How is one of the most prevalent of the lot.

    You may have had this experience already: you hire a lawyer to help you and you become more upset with them than the other people you hired the lawyer to help you with.  Let me share some hard- earned techniques.  I will start with the easy and then work out.

                         Scare the Wits  Out of You

   Most lawyers can't seem to help themselves: they put their lawyer hat on and try to scare the wits out of you, tell you all the awful things that can happen to you.  Sound familiar?  The worst-case scenario for them is the best-case scenario for them; higher fees.

     Much of this may seem counterintuitive and it is.  There are plenty of things your lawyer will often fail to tell you, such as the law that is relevant to your case.   How could that be?  It happens with regularity because the lawyers want to keep you, the client (seemingly the boss) in the dark on many matters, to maintain their control over you.

   You want to test out this reality?  Study up a bunch on the state statutes  and case law in your state on matters relevant to your case.  Then, when your lawyer puts on that lawyer hat again and wants to scare the wits out of you, to keep you in line and keep the fees coming in…what happens? 

    They will argue with you that you don't know what you are talking about.  You know why that is?  It is because They Are the Lawyers and suffered through the drudgery of law school and you don't know anything.

       So, save your breath, in most cases you are better off Not letting them know what you know.  Their regular refrain will be that they have your best interests at heart.  Listen with a skeptical mind and what is to be done is ultimately for You to decide.  You have to live with it, not them.

                       Never Tell Your Lawyer This

    Ok, so you have hired a lawyer or their firm to represent you in what becomes negotiations.  You will often find that your biggest job and headache is to push back on your own lawyers, so they will push back against the bad guys whoever they are. Want to know what one of the worst things you can do with your own lawyer when you are in protracted negotiations?

      Giving them your fallback position; because 9 of 10 times they will fall all the way back to that from the beginning.  We are talking litigators, "professional" negotiators.  Because it's easier to fight you than it is to fight the opponents.

   So, let's say you are caught up in a lawsuit of some kind.  Do not sit back and wait for the bills and assume your lawyer is doing a good job.  This is one of those things that seems so obvious, that one is really tempted to forget about it; that is to grill your lawyer on how they have pushed back.

                        Like Propping Up a Jellyfish              

    Unfortunately, I have had to confront lawyers on occasion by asking them exactly How they have pushed back.  Seems a simple, direct and worthy question, right?  I did it once to a firm that was racking up huge bills on the company I worked for and the lawyers for the firm were positively infuriated. Yes, why would I be asking such a thing?  Why indeed.

                 Another lawyer I confronted with the same simple question and he responded, he did not make the case for me because he "did not want to argue."   You heard it, a lawyer who didn't want to argue!  Not excusable, but part of the problem was that he was negotiating with another lawyer; professional courtesy you know.  Beware, you may have a lawyer that you have to prop up like a jellyfish.

                        DOUBLE TROUBLE:  INSURANCE LAWYERS

     There are lawyers and then there are insurance lawyers.  You could find yourself squared off against insurance lawyers in one or two general categories: 1.)  When you know they are against you or 2.) When they are supposed to be for you.

     The first category is when an insurance company appoints a lawyer to protect their client from liabilities from you.  You may have filed against an individual who rear-ended you.  Their insurance company appoints a lawyer to defend against your claim.  You could file a medical malpractice case or something much more mundane. 

       The other broad category where you have far more leverage is when the insurance appoints a lawyer, and you are theoretically the client.  Maybe you are affiliated with a company that has director's insurance where if there is a legal complaint, the insurance company will retain a lawyer for you. In these cases, you are the client, not the insurance company.

      But guess what?  These lawyers may work for you ostensibly, but they really work for the insurance companies.  Why?  Because the lawyers usually have sweetheart deals with the insurance companies.  The lawyers have gotten business from the insurance companies before you and will again after you.

    So, you think the lawyer might come up with a settlement where the insurance companies have to pay some appreciable amount of money?  You know the answer to that.  No way, the lawyers will squeeze you and not their gravy train.

    How to Get Your Insurance Company to Pay a Claim 

      A subset of this category is when your own insurance company uses their in-house lawyers to fight you off; maybe you disputed the non-payment of a big medical claim or your homeowners' insurance refuses to pay.  For most of these cases in the second category, meaning when you paid for the insurance, the best leverage for you is to take on the insurance company.

      What is the simplest, fastest, cheapest and most effective recourse?  Regulator? Lawyer? Court? Letter?  Yes a letter, but a very ingenious letter.

    You find out the full name of the state Commissioner of Insurance.  You find out the full street address of  your state Insurance Commission, and you use the street address, not any post office box.

     Then you draft up a one-page letter to the Commissioner.  You put in a reference line  such as Re:  Investigation of ABC Insurance Company.  In the letter you state your policy number and about how long you have had the policy. Then in noninflammatory words you describe the misdeeds of the insurance company, just the facts.

    Then you ask for an investigation of the insurance company because you believe it may be committing a pattern of abuse throughout the state.  You close at the bottom of the letter with a stated copy of the letter to the CEO of the insurance company by name, then the name of your agent's superior and title which can easily be found online, then the final person to get a copy is your agent by name themselves.

    Then you do Not send the letter to the Commissioner, but you scan it and email it to your agent!  In the email you say this is a draft you are prepared to send if they don't get straight with you.  You don't  send it to the Commissioner because there is no fallback position.  The promise and warning of sending it is all it takes. 

    I have employed this exact strategy when the stakes were in the six -figure range and it worked like magic!

                   $40 to Leave a 10 Second Message

     You have to love these guys.  You have heard of these little counters that lawyers have, right?  They usually bill in segments of 10 per hour, that is six minutes for every segment.  I have been shown a few of these lawyer bills, a wonderful sight.  

     DATE                    DESCRIPTION              HOURS            AMOUNT

Feb-14-19                  Composed retainer      2                      $800


Feb.  15                      Call clients; l/msg.          0.10                40

Feb 16                      Review voice mail from client   0.10     40

   So, there we have it……  $80 to leave a ten second voice mail and to review a return call voicemail.  Enough said!!!                        

    If you have an excellent lawyer; hang on to them with all you might; pay on time and count your blessings; if not………

                    Scare the Wits Out of Your Lawyer

   TECHNIQUE NUMBER ONE Having a real serious problem with your lawyer?  You know what scares them most of all?  Filing a complaint with the Legal Board of Ethics of your state bar association.  No kidding, this is like you have waved a magic wand.

   You can quickly look it up on- line.  Your state bar may have for example nine-member lawyers on this Ethics Board, you can typically find the names and the process to file a formal complaint.

   The point is, you don't want to file a complaint; what you really need to know is just the fundamentals of how it works and really, just that it is a very powerful option for you.

   As a kind of last resort, where your lawyer is really messing up, your best option is to tell them verbally, that if your issues with them cannot be solved, you will swear out a complaint.  Even a complaint in many states is made public in some regards.  Having the exact name of the state board in hand, their address and the Chair, might come in handy to know and for credibility for real impact.

   Want to be a little less nuclear?  You say, "You know, Dewey, I told a friend of mine about the situation with you and they told me that I should consider filing a complaint with the Board of Ethics of the (Florida) State Bar Association.

                Start Out on Offense and Stay on Offense    

    Maybe you are or will be involved in a lawsuit or a legal dispute, simple or contentious like a divorce proceeding.  When one is down in the weeds, it is very easy to forget the weeds for the forest, meaning the big strategy picture.  The key to many legal proceedings is to start on the offense and stay on the offense.

    Keep the other side off balance by doing something to them before they do something else to you.  Get them into a reactive pose; you do not want to be the one reacting and always playing catch up.  Like the artillery during battle:  if those rounds are not going out from you to them, they do not have time to send them in to you.

     More specifically, you want your lawyer sending out all those rounds: discovery demands, depositions, motions for this, that, whatever.  I will give just one arcane, but apt example.  You are part of a lawsuit.  Maybe you are the plaintiff, and you are asserting that the defendant owes you money.

     Before you go to court, you can instruct your lawyer to file for a "provisional remedy" meaning the motion to the court may ask that certain monies of the defendant be frozen because there is a belief that in the event of a favorable verdict, the money will not long be there.

                                 They Did What to Us?

    Your motion hits the other party like a ton of bricks; what the hell is this?  There are many cases where the party on the receiving end never gets word of a motion accepted by the court, because proper service of the complaint was bungled; lawyers did not get it, did not know, did not respond in time and so on. 

     The point is that dealing with lawyers is a game and legal disputes are essentially a game; sure, the facts or law may matter, but usually it is who can play the game best.

    Another technique you have to have is "making a record." That is legal jargon for having your own record of exactly what transpired during your legal process at any key time.  So, you may need to do something simple like placing down your phone at a key dispute meeting or something more daring and record your conversation with your lawyer or moreover with your lawyer talking to other lawyers while you are on the phone.

     About half of the states in the Union are "one party consent states," meaning only one party, that would be you, has to be informed that the conversation is being recorded. This technique is invaluable because you do Not tell them you are recording them. With simple software, the audio can be converted to a transcript, that could be the best thing you ever did in the whole proceeding.

                     Magic Words to Your Lawyer                     

      "Tell him you want to settle up."  I was sitting in the steam room of the Providence Recreation Center outside Falls Church, Virginia one evening.  As it happened there were a bunch of guys sitting around, sweating it out.  There was a discussion of a couple guys talking about legal dilemmas.  One decent seeming guy said he was a lawyer and talked a bit about his profession.

   I had nothing to lose.  I was beside myself.  I could not figure how to get out of the clutches of a lawyer who was running up my tab.  I had hired the guy to sue an organization for a wrongful action.  They counter-sued.  They had more money than me.  My lawyer was pulling me deeper and deeper into this.  The good lawyer in the steam room told me what to do.

      I went back and told my lawyer that I wanted to settle up.  Bingo!  The light went on; he was going to be paid and we could both get out of it and move on.

                         Fire Your Lawyer: Quick and Easy

     God forbid, if you want to fire your lawyer and actually hire another one, what do you do?  Well, in the first place, you never give documents to a lawyer for which you have not made copies.  It is malpractice, if they refuse to give them back to you at any time, but if you try to get those documents back, they may resist, maybe you have not fully paid your bill yet.  The lawyer is required to return all documents when you request them.

 ound a more suitable attorney, you merely sign a contract with her or him and the new lawyer sends a certified letter to the old attorney with a new Power of Attorney form that you have signed that designates the new lawyer as the one of record.  Bingo!  The bad lawyer is fired and based on legal "ethics" cannot comment on the case to anyone.

                                  Make Your Lawyer Accountable to You    

        Some of the best use of readnotify software is probably checking to make sure your lawyer is opening and reading your emails and when.  The recipients Cannot Tell you are using it on them.  The lawyers like to play cloak and diggers, hide and go seek.  You can get this software for peanuts and tract exactly when and/or if your lawyer is actually reading your emails and all the good details as well

     The answer to lawyers?  Try very hard to stay out of trouble of course.  Some things are almost unavoidable during the ups and downs of life, all too often attracting those jerks in between.

      If you do have to take on a lawyer, hear them out, let them rest their case, don't be worried by anything they tell you, they will always suggest the worst scenario will and could take place. Most of all, keep your own counsel, you are the client, you are the boss.  Maybe you did not go to law school: but know that you can play the game with the best of them.

                       YOU CAN SCARE THE WITS OUT OF THEM!                

     Sometimes it seems like there are so many jerks out there wanting to torment you, with lawyers standing at the head of line.  When the stakes are really high, don't be shy about coming off a bit crazy to put those Big Jerks totally off balance.

    One of the most legionary Championship Boxing Matches of all time was the heavyweight thriller between Mohammed Ali (then known as Cassius Clay) and Sonny Liston in 1964.  The line was 8 to 1 that the Champ Liston would win.   Sports Illustrated named it the fourth greatest sports event of the 20th Century.

    The day before the fight during the weigh-in, Ali was acting crazy, yelling and hollering and carrying on.  Later, Ali's famous trainer Angelo Dundee asked him:  "What in the world was that all about?"

   Ali said, "Liston is afraid of no man, but he is afraid of a crazy man."

   Liston did not answer the bell in the seventh round.

    The point is, if needed, your lawyer needs to be told and understand, if you get inflamed, they will rue the day.

Brian Hampton, MA, MAJ INF USAR (ret)



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