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significantly impact the way in which at- torneys practice law (e.g., whether or not to recommend settlement). Instead, these decisions should cause attorneys to be dili- gent in documenting how they practice law.


For example, even before Prande and


Thomas, a prudent attorney would not likely make a settlement recommendation without first analyzing all the relevant fac- tors (such as the facts of the case, the potential strengths and weaknesses of the case, the likely monetary and psychologi- cal costs of proceeding with the litigation, and the likely outcome of the case, etc.) and discussing the same with the client. Following Prande and Thomas, the pru- dent attorney also will contemporaneously document his or her settlement analysis and ask the client to memorialize the fact that the attorney’s analysis was discussed with, and understood by, the client, and that the settlement decision is ultimately the client’s to make.30


This documenta-


tion may prove valuable to defending a challenge to the reasonableness of the settlement recommendation. Similarly, attorneys will seek through documentation to protect themselves from malpractice claims challenging as- pects of judgment other than settlement advice. A prudent attorney will document the attorney’s thought processes and ac- tions as the case is investigated, as it develops, and as is tried, so the attorney can demonstrate his care, diligence, skill and knowledge in the event of later mal- practice claim. One area where Prande and Thomas may impact the practice of law is the com- mon practice of consulting experienced attorneys for their evaluation of the settle- ment value of a case. In light of Thomas the question arises whether the consult- ant is exposed to liability for offering such an opinion? This takes on particular sig- nificance when one considers that most settlement consultations are rather infor- mal in nature and do not involve a thorough review of the entire case file. An equally interesting question is whether the attorney seeking the consul- tation is exposed to liability for later relying on the consultant’s recommenda-


30


Practicing defensively, it would not hurt to also include in such a memorialization a sen- tence or two documenting that the client has been advised that litigation involves risks and opportunities, thus, if the matter is allowed to go to trial the client could receive more, less or the same as that being offered in settle- ment.


Winter 2000 Trial Reporter 29


tion if it is determined that the recom- mendation was based on less than a full disclosure and/or understanding of the facts of the case. In any event, it would behoove both the attorney seeking the consultation, and the attorney offering settlement advice, to document the information considered and the basis for the opinions offered.


“TRIAL WITHIN A TRIAL” The majority of the Court of Appeals


in Thomas observed that the “normal” way causation/damages are established in a le- gal malpractice action is through a “trial within a trial” or “case within a case” or “suit within a suit” wherein the plaintiff litigates the underlying case before the legal malpractice jury to establish what the recovery would have been absent the al- leged negligence.31


Although approving


the “trial within a trial” approach em- ployed in Thomas, in essence because no better alternative exists, the Court did not indicate how such a trial should be con- ducted in Maryland. Thus, several open questions remain. • For example, we know from the Tho- mas dissent that the plaintiff’s expert was allowed to testify that the settle- ment was one that no reasonable attorney would have recommended.32 What is the extent of permissible ex- pert testimony in the “trial within a trial?” Could the expert have gone further and opined as to a specific settlement value of the underlying case? Could he have rendered an opin- ion on the likely jury verdict in the underlying case had the matter been tried?33


31Thomas, 351 Md. at 533, 718 A.2d at 1197. 32Id. at 539, 718 A.2d at 1200.


33


The Court did note that testimony from persons other than the defendant concern- ing settlement value has been held by some courts as speculative. Id. at 532, 718 A.2d at 1196


• The dissent complained that the plain- tiff cross examined the defendant using the ad damnum drafted by the defen- dant in the underlying action.34


In


response, the majority noted that the defendant did not object to the use of the ad damnum.35


Can a plaintiff use


the complaint in the underlying action to cross examine the defendant if the defendant objects?


• Are other statements concerning the merits or value of the underlying case made by the defendant while repre- senting the plaintiff admissible over objection in the “trial within a trial?”


• Should the issue of the attorney’s neg- ligence be bifurcated from the “trial within a trial”? If so, which aspect of the action should be tried first?


• If the underlying action would have been tried without a jury (such as a Federal Tort Claims Action), and the identity of trial judge was known at the time of settlement, is evidence of that specific judge’s reputation, biases and tendencies properly admitted as evidence concerning how the under- lying matter would have been resolved?


CONCLUSION Prande and Thomas reflect that attor-


neys are not above the law but subject to the same risks of liability faced by every professional.


Although these decisions


should not significantly impact the prac- tice of law, the prudent attorney would be wise to recall that every judgment made during the course of a representation may now be challenged years after the fact. Thus, the trial attorney who is not in the habit of “papering the file” with protec- tive memoranda, should acquire the habit.


34Id. at 539-41, 718 A.2d at 1200-01. 35Id. at 536, 718 A.2d at 1198.


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