Day on Torts
The Kentucky Supreme Court has recently modified the law concerning the application of the “error of judgment” rule in legal malpractice cases.
In Equitania Insurance Conmpany v. Slone & Garrett, P.S.C., 2003-SC-1003-DG (2/23/06). The Court described the case as follows: “This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that she negligently advised them during the midst of the shareholder dispute. They claim that Garrett negligently failed to properly advise them as to how to retain control of the corporation; that the methods she advised violated the insurance code ; violated a fiduciary duty to shareholders; was unethical, and was substantially more expensive.”
The jury was given this instruction:
“It was the duty of Defendant, Laurel Garrett, in undertaking the legal representation of the plaintiffs, to possess to an ordinary extent the technical knowledge commonly possessed in her profession, to exercise that degree of care and skill which an ordinary, reasonably competent lawyer would exercise under the same or similar circumstances . Provided, however, a lawyer cannot be held responsible for errors in judgment or for advising a course of action even if that course of action ultimately proves to be unsuccessful.”
The Court reversed, saying “[t]he tendered instructions did not advise the jury that it had to be an error of law which precluded liability, nor did it inform the jury that there are circumstances in which misjudgment of the law could be a basis for liability . There can be many circumstances in which lawyers can commit errors of judgment which deviate from the standard of care. Whether an error of judgment is legal malpractice is a question of fact for the jury. … Kentucky should not allow lawyers to avoid liability for committing errors in judgment which the average reasonably prudent lawyer would not commit. Any avoidance of liability should only be allowed for errors of judgment made in absolute good faith.”
The “error in judgment” rule is a hole that you can drive a Peterbilt truck through in many cases. It needs to be tightened up for legal and medical malpractice cases. That being said, I think the Kentucky case goes a little too far. It does not recognize that if a professional has gathered the facts in accordance with the standard of care and the standard of care permits one of multiple courses of action to be taken it is not negligence to choose one course of action over the other. A doctor’s decision to choose one surgical technique over the other should not be negligence if informed consent has been obtained. A lawyer’s informed decision not to call a particular witness at trial whose testimony would be cumulative should not be negligence.
You can find the decision by going to this website and searching for the opinion using key words; there is no direct link.