Legal Malpractice Expert Opines on Negligent Representation in Criminal Trial

Joseph O'Neill

Written by
— Updated on October 11, 2017

Legal Malpractice Expert WitnessThis case involves an individual who suffered monetary harm as a result of alleged legal malpractice. The individual had a prior confrontation with police in which he claimed he was assaulted. Ultimately, he was charged, but he intended to bring a civil claim against the police once the charges were settled. During the course of a discussion with his criminal defense lawyer, the lawyer advised him that a particular legal  arrangement would not affect his potential civil litigation rights with respect to claiming against the police. He accepted the terms of the arrangement, only to learn later that the decision would significantly impede his ability to bring civil action.

Question(s) For Expert Witness

  • 1. Please briefly describe your experience as a criminal lawyer.
  • 2. What duty does a lawyer have in a situation like this, where the client intends to bring civil action once the criminal matter is settled?

Expert Witness Response E-071371

I help with similar criminal situations quite commonly. The interesting thing here is that the mechanism used here in 99% of circumstances is a great result. If I were advising a similar client who wanted to bring civil action, I would tell him or her that the arrangement could cause problems, though it doesn’t always because it’s not an admission of guilt nor an acceptance of liability. In general, the wisest advice is to say that it could have an impact. If a client alerts me that he or she may be looking for a lawsuit, I would pursue an arrangement that states explicitly that he or she don’t accept the underlying claim.

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