Legal malpractice litigation is a study in contradictions. It involves mistakes of attorneys and money damages that may ensue, yet it is generally commenced by attorneys, always defended by attorneys and refereed by attorney-judges. There is an inherent tension when lawyer-judges referee claims against an attorney. Legal malpractice litigation is subjected to controls and limitations not found in other areas of the law. These judge-made controls and limitations make professional claims against attorneys much more difficult than those against any other profession.
The groundbreaking “Do Judges Systematically Favor the Interests of the Legal Profession”1 asks why lawyers are the only American profession to be truly and completely self-regulated. This Tennessee College of Law Legal Studies Research Paper is understood to be the first wide-ranging academic examination of the institutional bias of the legal profession. It asks the question of why legal malpractice is so much harder to prove than medical malpractice. The conclusion is that many legal outcomes can be explained, and future case outcomes predicted by whether the outcome will positively affect the interests of the legal profession rather than whether the outcome is correct as to the specific litigants. Claims against attorneys, which are anathema to the profession as a whole, are made significantly more difficult to complete by virtue of a group of unique rules particular to attorney professional practice.
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