Sunday, February 3, 2013

Fishman v. Brooks case brief

Fishman v. Brooks case summary
487 N.E.2d 1377 (Mass. 1986)

PROCEDURAL HISTORY: Appellant attorney sought review of a decision from the Superior Court of Middlesex (Massachusetts), which entered judgment, upon a jury verdict, for appellee client in his action for malpractice and abuse of process.

FACTS: The attorney brought a declaratory judgment action against the client to determine if the client had breached the fee agreement between the parties concerning the attorney's representation of the client in an action for personal injuries. The attorney dismissed his action and the client filed a counterclaim for malpractice and abuse of process. The trial court, upon a jury verdict, entered judgment for the client and the attorney appealed. The court affirmed, finding that the client would have obtained a better result had the attorney exercised adequate skill and care. The court determined that expert testimony on the reasonableness of the settlement obtained by the attorney for the client was relevant and was properly admitted.

The court concluded that the trial court's submission to the jury of the issue concerning the reasonableness of the aforementioned settlement was not properly before the court because the attorney withdrew his objection and failed to request a limiting instruction on the issue.

An attorney who has not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of the average qualified practitioner. An attorney who violates this duty is liable to his client for any reasonably foreseeable loss caused by his negligence.

CONCLUSION: The court affirmed the judgment in favor of the client in his action for malpractice and abuse of process.

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