Look Before You Leap: Caveats Before Suing an Attorney

Neil Baum, MD

Neil Baum, MD, is Clinical Associate Professor of Urology, Tulane Medical School, New Orleans, LA, and author of Marketing Your Clinical Practice: Ethically, Effectively, and Economically, Jones Bartlett Publishers.

Several years ago I was hired by a plaintiff attorney as an expert witness. He paid the fee in advance but the night before the trial, his co-counsel called me to review the case. It was clear that she did not have a thorough understanding of the case and I spent two hours with her on the phone trying to bring her up to speed. I also typed out questions that I suggested she use when taking my testimony and e-mailed them to her as well as brought her a copy the morning of the trial. I told the co-counsel that I would be submitting an additional fee of $600 (or $300\hour) for the extra work that I did. I was advised to inform the lead attorney and told him about the extra fee before the trial. He told me that all I had to do was send him the bill and he would pay the additional fee. I gave my testimony and learned later that the verdict was given in favor of the plaintiff.

The bill was sent to the lead attorney but he ignored several bills and several phone calls. I decided to take this to the state bar association and submitted a complaint to the ethics committee of the state bar association. They tried to mediate the dispute and “suggested” that he pay the $600. He refused and they informed me that they could only make suggestions but could not compel him to pay the fee.

At Christmas time, I sent him a note suggesting in the Judeo-Christian spirit of the holiday season that I would accept him donating $600 to charity and that would acknowledge that I did the two hours of additional work on behalf of his client. This, too, was ignored.

I shared my story with an attorney friend who offered to help me and my attorney suggested that he write him a letter informing him that I have retained an attorney and that his letter requested payment or that we would file a demand for payment in small claims court. My friend assured me that this would most likely result in getting paid. After several contentious phone calls between my attorney and the plaintiff lawyer resulting in only name calling on the part of the plaintiff lawyer, he advised me to file a suit in small claims court. The filing fee was $600! There was also $200 of additional fees for pleadings, motions, etc.

Shortly after filing the suit in small claims court, I received a notice that the plaintiff’s attorney filed a defamation of character suit against me. My attorney assured me that if we won the case in small claims court, there would be no grounds for defamation of character as the truth is not defamation.

My attorney suggested we take the deposition of the co-counsel to confirm that the extra work was indeed done on behalf of his client. Soon thereafter, my attorney received a call asking, “how much is going to take to make this go away?” The plaintiff’s attorney finally paid the $600, the court costs, and my attorney’s fees.

What did I learn?

First, it’s a lot of energy to teach someone a lesson. I estimated I spent over a dozen hours writing letters, speaking to my attorney, and attempting to have the situation mediated by the state bar association. I certainly could have used my time more productively, like contributing to this blog! Second, it put tension and pressure on my wife and family who against proceeding with litigation for only $600. Finally, I placed undo stress on my friendship with my lawyer who never complained and never made me feel badly about seeing the process through to completion.

What would I do the next time? I would go as far as sending the demand letter for payment from my attorney but would have stopped after that and just let it go.

What did I do with the award? I gave it to my synagogue to the social justice fund. I certainly didn’t want to enjoy or profit from this ill-gotten award.

Bottom line: Teaching someone a lesson is expensive and probably not worth the energy or effort unless it is your child or someone you love. So if you are in a similar situation, look before you leap!