Fishman v. Brooks

487 N.E.2d 1377 (1986)

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Nature of the Case

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Facts

P suffered serious injuries when a car struck him as he rode his bicycle in the breakdown lane of Route Nine in Newton. P wore dark clothing, and his bicycle may have lacked proper light reflectors. P retained D to represent him. D had not tried a case of any sort since 1961. His part-time solo practice mainly involved real estate conveyancing. D did not commence suit until sixteen months after the accident. D did not obtain service on the driver defendant for more than ten months after filing the complaint, a delay which, by his own admission, interfered with his handling of the case. D made no effort to examine the motor vehicle or to investigate in any detail what the driver had been doing immediately prior to the accident. He engaged in no useful pretrial discovery. D relied on information the driver's insurer volunteered. He did not learn, for example, that shortly after the accident, the driver had stated that she neither saw P nor the bicycle before her vehicle struck them. D consulted an able attorney experienced in personal injury litigation about referring the case to him, but the negotiations failed because D would not agree to an even division of his one-third contingent fee. D made a settlement demand of $250,000 on the driver's insurer. D did not know what the available insurance coverage was. D told P that only $250,000 was available when, in fact, $1,000,000 was available. Right before trial D told P that he could not win if he went to trial. P agreed to settle for $160,000, knowing that D was not prepared to try the case. P sued D for malpractice. The original personal injury action was litigated as well to determine damages P might have gotten. An experienced attorney and claims adjuster thought it was worth $400k to $500k. The jury found for P and awarded $525,000. These damages were adjusted to reflect P’s contributory fault (10%), the amount of medical expenses paid from the settlement ($32,000), and the amount P received personally from the settlement ($90,000) and by allowing interest on the balance. No reduction was allowed for D's counsel fees collected in the earlier action. D appealed.