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Kenneth Feldman Quoted by Bloomberg Law on Development in Calif. ‘Settle and Sue’ Legal Malpractice Suits

Los Angeles, Calif. (July 27, 2020) – Los Angeles Partner Kenneth C. Feldman was recently quoted by Bloomberg Law for an article about a recent California appellate court ruling that may impact the standard of proof used in “settle and sue” cases, a type of legal malpractice lawsuit wherein a party settles but then sues their former attorney, alleging they could have obtained a more favorable settlement or a better result had there been a trial in the underlying case.

In such a case from June, Masellis v. Jensen, the California Court of Appeal, Fifth District, held that “the applicable standard of proof for the elements of causation and damages in a ‘settle and sue’ legal malpractice action is the preponderance of the evidence standard,” as opposed to “legal certainty,” which a prior appellate opinion (in which Lewis Brisbois was counsel for the prevailing party) had indicated should apply to “settle and sue” cases. There were a number of earlier such cases that also used the term "legal certainty."

Bloomberg Law spoke with several legal malpractice attorneys about what this decision means for future lawsuits, and if there is even much of a difference in practice between the two standards of evidence.

Mr. Feldman told the publication that it might be possible for courts to reconcile the preponderance of evidence and legal certainty standards, noting that while courts may not directly state the evidence level is not a preponderance of evidence, future appellate court decisions could clarify the issue. Mr. Feldman also remarked that speculation cannot take the place of admissible evidence. In such a case, preponderance of evidence might equte to legal certainty, as long as any speculative evidence is not included.

A petition to the California Supreme Court is expected to be filed soon in the Masellis case. In the meantime, Mr. Feldman said it remained to be seen how California courts would use this recent opinion, but he expects that plaintiffs’ lawyers will attempt to use it to their benefit. Furthermore, although not included in the Bloomberg Law article, Mr. Feldman also discussed with the reporter the dangers of "settle and sue" cases, mentioning the proverbial right of having a second bite at the apple, and noting that some states do not even allow such suits to proceed.

Mr. Feldman is the national co-chair of Lewis Brisbois’ Legal Malpractice Defense Department. He is a certified specialist in legal malpractice law by the California State Bar, and is the most recent chair of the California State Bar Legal Malpractice Law Advisory Commission. He is also the author of the California Legal Malpractice & Malicious Prosecution Liability Handbook, the 8th edition of which is expected to be published later this year

You can read the full article, titled “'Settle and Sue' Could Roil California Legal Malpractice Suits” on Bloomberg Law.


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