Anatomy of a Malpractice LawsuitAnatomy of a Malpractice Lawsuit

Presented by: Gary H. Barnes, Esq.

Gary H. Barnes, Professional AssociationBurlington, VT N. Venice, FL

Insurance Coverage Counsel ● Accounting Firm Counsel

Neutral Arbitration and Mediation Services

Copyright 2011, Gary H. Barnes, P.A. All Rights Reserved.

IntroductionIntroduction

What does a lawsuit mean?

– Time

– Money

– Lost Opportunity

– Publicity

– Reputation

– Morale

Introduction (cont.’d)Introduction (cont.’d)

Most Important, a lawsuit is a process that determines whether the government will require wealth-shifting from the Defendants to the Plaintiff

Introduction: Litigation OutcomesIntroduction: Litigation Outcomes

Worst Outcome

Better Outcome

Best Outcome

IntroductionIntroduction

Who can sue?

IntroductionIntroduction

Who Gets Sued?

The Conventional View vs. Reality

(good accountants and bad accountants)

Where it all beginsWhere it all begins

Client Acceptance Documentation of Expectations Self-Preservation 101: Put Your Job In

Writing Self-Preservation 102: Put Your Clients’

Job In Writing

What To Do When You Discover Your Own MistakeWhat To Do When You Discover Your Own Mistake

The dangers of informing the client The dangers of investigating – the “self-

evaluative privilege” vs. creating evidence to be used against you.

Attorney-client privilege Attorney work product privilege

POLLING QUESTION 1POLLING QUESTION 1

If you are threatened with a lawsuit you should investigate the complaint and get a written assessment of the claim's validity, true or false?

The Demand Letter: What To DoThe Demand Letter: What To Do

When to Contact Your InsurerWho should reply?Retention of defense counselRetention of insurance coverage counsel

The Complaint and Service of ProcessThe Complaint and Service of Process

What the complaint means Publicity / Public Record Contrast with Arbitration

Selection of Defense CounselSelection of Defense Counsel

Policyholder input on selection of defense counsel

Who is on your insurers “panel” of defense counsel

Your right to retain separate and independent defense counsel, at your expense

Experience MattersExperience Matters

What is your [insurer-provided] defense counsel’s experience with AICPA Professional Standards?

What is your defense counsel’s actual trial experience?

Selection of Consulting ExpertSelection of Consulting Expert

“consulting expert” vs. “testifying expert” The role of the consulting expert

(Cheerleaders need not apply) Written vs. oral reports

Defense Counsel’s Initial ReportDefense Counsel’s Initial Report

Statement of facts: how accurate and thorough?

How clearly written? Settlement position? Risks of going forward with trial How the insurer uses defense counsel’s

initial report [reserves]. Is Defense Counsel trying to obfuscate?

The Potential for Disputes With Your Insurance CompanyThe Potential for Disputes With Your Insurance Company

Duty To Defend and Reservations of Rights

Jurisdiction: Why Am I Being Sued in Oshkosh?Jurisdiction: Why Am I Being Sued in Oshkosh?

In Personam Jurisdiction: sufficient minimum contacts or personal jurisdiction

Examples: client in foreign state, web pages, preparation of tax returns (state), preparation of K-1

Impact of a forum selection clause in the engagement letter

Removal To Federal CourtRemoval To Federal Court

Advantages of removal to federal court

– Jury pool

– Caliber of judges and law clerks

– Caliber of appellate courts

– Different rules of evidence

– Different Rules of Civil Procedure

– Drawbacks of removal

But the Plaintiff Was Never my Client! But the Plaintiff Was Never my Client!

Liability to non-client third parties Minimizing Exposure to Non-Clients Adopting and enforcing rules concerning staff

contact with third parties, even if client consents

Importance of engagement letter with known third-party user of accountant work product – define User’s responsibilities

POLLING QUESTION 2POLLING QUESTION 2

You can be sued in a state where you do not maintain an office, if you regularly contact clients in that state using the telephone, e-mail, and overnight courier services, true or false?

Preparing the Answer / Motion to DismissPreparing the Answer / Motion to Dismiss

Role of the Defendant; gathering documents and identifying witnesses

Role of the Defense Counsel, develop a strategy, develop a theme, execute the plan.

Case Management By The CourtCase Management By The Court

Deadlines and ready for trial date Deadlines for motions to dismiss,

changes in pleadings, completion of discovery, motions for summary judgment, submission of pre-trial paperwork, calendaring of trial dates, mandatory dispute settlement talks.

Discovery: the Agony and The Ecstasy Discovery: the Agony and The Ecstasy

Disclosures Interrogatories Requests To Produce Requests To Admit Depositions

Dispositive MotionsDispositive Motions

How Cases Get Thrown Out of Court Why Cases Don’t Get Thrown Out of

Court

Gut Check: How and Why Attorney Fees ClimbGut Check: How and Why Attorney Fees Climb

Expenses to this point Who pays? Recovery of Attorney Fees The Effect of Self- Liquidating Policy

POLLING QUESTION 3POLLING QUESTION 3 True or false, your insurance policy may

reduce the amount of your coverage by the amount of defense expenses, including attorney and expert fees?

Mediation: What It’s All AboutMediation: What It’s All About

Why Mediation? Setting Goals For Mediation Who Is the Mediator? Can you “win” in Mediation? Is the Mediator Your Friend? Who decides whether to settle?

TrialTrial

Jury Selection/ General Instructions Opening Statements Examination of Witnesses Presentation of Documents/ Use of

Courtroom Technology The Importance of Theme

Trial (continued)Trial (continued)

What Life Is Like During Trial Trial to the Bench Jury Instructions The Verdict Post Trial Motions

AppealAppeal

How The Appeals Process Differs Post Trial Mediation The Record on Appeal Briefs Oral Argument The Decision: Permanent Publicity

Coverage DisputesCoverage Disputes

When coverage disputes may become litigation Insurer’s right to seek reimbursement for excess

coverage provided. Against whom may the insurer seek to recoup its

losses? May subrogation be sought by the insurer against an

insured under any circumstances (example, if a partner engages in fraudulent activity)

What are the Policyholder’s duties in the event of subrogation?

Recap: To Achieve GoalsRecap: To Achieve Goals

Present a Narrow Profile

– Selectivity in clients, engagements, asset protection

Document Creation and Destruction Policies

Maintain Your Insurance

– Know your duties, your right to competent counsel

RecapRecap

Plan how and where

– Venue clause, arbitration clause Use Mediation Wisely Understand your exposure and take an

appropriate role in settlement negotiations.

Keep your eye on morale, reputation issues

Questions?Questions?

Key features of arbitration Consider retaining public relations

experts Remember impact on staff morale Have everyone prepared with “elevator

line” Prune your client list annually

Extra Credit AreasExtra Credit Areas

Bankruptcy BasicsBankruptcy Basics

How adversary proceedings in bankruptcy compare/contrast with civil litigation

The dual roles of a bankruptcy judge

Jury trial?

Asset Protection BasicsAsset Protection Basics

Adequate insurance Current estate planning Minimal assets in the name of the

accounting professional Practice organized as a professional

Corporation (in good standing) All retirement funds in “qualified”

retirement plans