Watch for the Sucker Punch… Joint and Several Liability for Professional Negligence?


By: Jon Tisdale

Litigants are forever looking for new ways to blame their lawyers when their mediocre case goes south. (As an aside, pay close attention to your intake protocol and “just say no” to those mediocre cases, because when they go bad, so will your relationship with your former client.) So, why is this a special problem for lawyers?
Like most states, California draws a bright line between economic and non-economic damages. In an effort to keep underinsured deadbeats from stiffing tort victims, California has enacted a statute with the stated economic impact being to hold “deep pocket” defendants (yes, the statute actually employs that disgraceful terminology) responsible jointly and severally for economic damages so as to not deprive an innocent victim of recovery of their medical bills, without regard to apportionment of fault. Non-economic damages (for “pain and suffering,” the so-called pot o’ gold at the end of the rainbow) remain collectible only to the extent of an actual apportionment of negligence by the trier of fact. This legislative enactment was, at least in California, aimed at the damages recoverable as a result of countless personal injury actions arising from car accidents. But wait… the statute applies to TORT actions… which means that it also applies, apparently unwittingly, to Professional Negligence actions.
California Jury Instructions (CACI) attempt to clearly define economic versus non-economic damages. Economic damages are verifiable, out-of-pocket monetary losses. Non-economic damages are the pie-in-the-sky general damages for physical pain, mental suffering and emotional distress that lead to the “Stella Award” type of verdicts. But that’s typically not the danger of professional negligence actions. CACI clearly instructs jurors that: “you will be asked on the Verdict Form to state the two categories of damages separately” (which is a legislative proclamation that if a trial judge permits a verdict form that does not require segregation of economic and non-economic damages, it will in fact be reversible error).
Why is this dangerous in professional negligence cases? Because, generally speaking, in cases involving the tort of professional negligence virtually all of the damages are economic! Professional negligence cases have a nominal “emotional distress” element to them, but the meat and potatoes of the tort is WHAT DID YOUR NEGLIGENCE COST ME OUT OF POCKET? It is not so much about how did it make the litigant feel, but how much did it cost them.
Increasingly we see cases in which litigants with less than clearly meritorious cases change lawyers mid-case, sometimes more than once. If it goes south, they are going to sue everyone. This is the danger that you need to be alerted to and cognizant of. You could be defending a lawyer who was just one of several lawyers in the chain of representation and who did seemingly nothing wrong.  But if the economic damages are millions of dollars and your client is found 1% at fault… he/she has joint and several liability for the full amount of the economic damages! More than a little scary…
If you have any questions or would like more information, please contact Jon Tisdale at [email protected].