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“Settle and Sue” – a new standard for California malpractice suits

When two parties have a conflict, it’s extremely common to settle the case before it reaches a court. In fact, the majority of cases are settled by the parties’ attorneys and don’t make it to the litigation stage. But sometimes, an attorney will pressure their client into settling a case when it’s not in their best interest to do so, such as when they clearly could have gotten a much greater settlement by litigating the case in court.

Settle and sue

If this happened to you, you might be inclined to bring what’s sometimes called a settle and sue case. This is when you hire a new attorney and bring a legal malpractice lawsuit against your former attorney.

The grounds for this suit would be that your original attorney violated their duty to advocate for your best interest. You would allege that your attorney put their own interests before your own in order to get the case over with quickly by failing to pursue the possible recovery you could have obtained had they taken the case to trial.

The new standard of proof

A recent case before a California appeals court has established – for now – the standard that you would have to meet in order to win a settle and sue case against your former attorney.

According to the court’s holding, former clients who bring a legal malpractice suit against their attorneys for pushing an unfavorable settlement must meet a “preponderance of the evidence” standard. This is a change from the “legal certainty” standard that most courts used in settle and sue cases up until now.

In plain English, this means that it just became easier for someone in your position to prove in court that the settlement that your former attorney negotiated for you wasn’t in your best interest.

Whereas before you would have had to prove with a high level of certainty that litigating the case would have gotten you a better recovery, now you must only show that it’s more likely than not that you would have gotten a better recovery by litigating. If the court finds that it’s even 51% likely that settling wasn’t in your best interest, you could win your suit against your former attorney.

Legal malpractice is an ever-changing field of law. It’s important to stay up to date on new cases that come before California courts, and to consult an experienced malpractice attorney, in order to know whether you’re likely to win a suit against your former attorney or not.

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