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Unfortunately, errors occur in the course of litigation. The complexity of the issues, the pressure of a vigorously contested case, and the need to make prompt decisions can contribute to the commission of the errors. But, the errors may not be solely those of the attorneys. Sometimes, the trial judge can make an error that may prove decisive in the case. Is this a defense when the attorney is sued by her client for malpractice? The short answer is “yes,” although it is a difficult one to prove and potentially limited in scope.

Judicial error as a defense has received little attention and is rarely asserted. This is probably as a result of: (a) the fact that, until recently, relatively few malpractice claims arose out of litigation; and (b) skepticism that one could persuade a jury that an independent, learned participant in the process was responsible for the client’s disappointing result. But, this situation may be changing as litigation related  claims have risen substantially.

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