“Second-Guessing” Immunity for Trial Attorneys

Legal malpractice lawsuits often focus on the plaintiffs second-guessing the strategic and tactical decisions made by their own counsel in a prior proceeding and claims of damages when such decisions do not result in their favor. To combat the propensity of such lawsuits made on “judgment” calls and to protect the good-faith decisions of lawyers, Florida law has long established that the doctrine ofjudgmental immunity insulates attorneys’ good faith decisions in “unsettled” areas of law from legal malpractice claims. Recently, the doctrine of judgmental immunity has been confirmed and expanded to include the good faith and tactical decisions that attorneys make at trial, as demonstrated by the decision of the United States District Court for the Southern District of Florida in Inlet Condominium Association v. Childress Duffy, Ltd., Inc., etal., Case No. 12-21711-CIV.

In Florida, the doctrine of judgmental immunity provides that while an attorney may be held liable for damages incurred by a client based on the attorney’s failure to act with a reasonable degree of care, skill, and dispatch,’ an attorney is not an insurer of the outcome of a case.’ In the seminal case of Crosby v. Jones, the Florida Supreme Court explicitly recognized that under the doctrine of judgmental immunity, good faith tactical decisions or decisions made on a fairly debatable point of law are not actionable, even if they later turn out to be incorrect.’ If an attorney acts in good faith and exercises an honest and informed decision in providing professional advice, “the failure to anticipate correctly the resolution of an unsettled legal principle does not constitute culpable conduct.”4 As such, the doctrine of “judgmental immunity is premised on the understanding that an attorney who acts in good faith and makes a diligent inquiry into an area of law should not be held liable for providing advice or taking action in an unsettled area of law.” Quite simply, an attorney is not liable for legal malpractice simply for losing an issue in a case or rendering advice in an unsettled area of law which later proves to be wrong.6 The Florida Supreme Court in Crosby stated as follows:

As a matter of policy, an attorney should not be required to compromise or attenuate an otherwise sound exercise of informed judgment with added advice concerning the unsettled nature of relevant legal principles. Under the venerable error­in-judgment rule, if an attorney acting in good faith exercises an honest and informed discretion in providing professional advice, the failure to anticipate correctly the resolution of an unsettled legal principle does not constitute culpable conduct… In short, the exercise of sound professional judgment rests upon considerations of legal perception and not prescience.’

In order to assert the defense of judgmental immunity, an attorney must show that: (1) the legal authority supporting the cause of action was “unsettled” or “fairly debatable;” and (2) the attorney acted in good faith and made a diligent inquiry into the unsettled area of law$ An issue of law is “unsettled” when it has not been determined by the state’s court of last resort and, as a result, well-reasoned lawyers may have reasonable doubts.9 In recent years, Florida courts have applied the defense of judgmental immunity in legal malpractice lawsuits, including, but not limited to, the following “unsettled” areas of law: the execution and preparation of a written release of individual defendants in an automobile accident lawsuit, even though the trial court subsequently dismissed the remaining defendant based on the release;10 the filing of a wrongfirl death claim resulting from medical malpractice and compliance with the medical malpractice statute of limitations;” the remedy of specific performance;12 and the failure to have a guardian appointed in relation to a minor services contract” The determination of whether an area of law is “unsettled” is a question of law’ and therefore may be decided by the court via a dispositive motion.

Most recently Cole, Scott & Kissane, P.A. was successful in asserting the defense of a judgmental immunity in Inlet Condominium Association v. Childress Du jfy, Ltd., Inc., et al., a legal malpractice case in which the Plaintiff was seeking over $1.5 million in alleged damages.’ In Inlet, the Southern District of Florida granted final summary judgment in favor of the Defendant, holding that the Plaintiff’s claims against the Defendant attorneys were barred by the doctrine of judgmental immunity.’ The Plaintiff brought a legal malpractice lawsuit against the Defendant after the trial court in the underlying first party property lawsuit struck Inlets claim for a $1.5 million elevator modernization contract at trial because the Defendant attorneys allegedly failed to call an elevator expert to opine that the elevator replacement was caused by hurricane damage.

Although the Plaintiff argued that the doctrine did not apply since there was no “unsettled” area of law with respect to calling experts in a first-party property case, the Inlet Court found otherwise and stated “there is no established method of prosecuting a first-party hurricane claim,” explaining that “the working up and trying of a case, in many respects, are matters of tactics, strategy, and professional discretion and judg ment.”” The court further ruled that “it is not `settled’ that a litigant must `retain, list, and call’ an expert in a particular field what attempting to link causation to an element of damages.”‘ The court found that the tactical decisions of the Defendant attorneys could not be “understated” relative to their proffer of a world-renowned wind expert in lieu of an elevator expert in order to prevent subjecting Inlet to cross-examination and a potential policy exclusion based on the extensive documentation of the pre-existing condition of the elevators.” Accordingly, the Inlet court thus concluded that the Defendant attorneys’ tactical decisions in an unsettled area of first-property hurricane claims were “what tactical decisions are made of’ and were thus exactly the type of decisions to which the protection of judgmental immunity should be afforded.”‘

In light of the Southern District’s recent application of the doctrine of judgmental immunity, it appears that the scope of judgmental immunity has now been expanded to protect attorneys’ well-reasoned and informed decisions in retaining, listing and calling particular witnesses and experts at trial; however, it is important to note that the doctrine of judgmental immunity is not applicable in the defense of every legal malpractice case, as Florida courts have limited the applicability of judgmental immunity in their interpretation of debatable and unsettled areas of law. For instance, the Fourth District Court of Appeal reversed a summary judgment entered in favor of a defendant attorney involving an untimely appeal, holding that the “mere `ambiguity of a rule’ of procedure, without more, does not equate to the somewhat more amorphous realm of `fairly debatable’ or `unsettled area of the law’ to which the doctrine of judgmental immunity is applied.”‘ In addition, the application of the doctrine of judgmental immunity has been limited in legal malpractice lawsuits concerning settlement. In Sauer Flanagan and Maniotis, P.A., the plaintiff filed suit against her attorneys for failing to properly advise and inform her of the risks involved in rejecting a settlement offer.”‘ The Sauer Court held that the doctrine of judgmental immunity did not bar the plaintiff’s legal malpractice lawsuit, stating that there is “no basis for concluding that an attorney is insulated from liability for failing to exercise ordinary skill and care in resolving settlement issues.’ Therefore, the reach of the doctrine of judgmental immunity does have limits relative to procedural matters and settlement decisions.

Despite these limits, trial attorneys subject to a legal malpractice claim can now take comfort in the fact that they will have a defense to the claim based on good faith tactical decisions that were made in the course of litigation and, in accordance with the recent decision in Inlet, the former client may have a more difficult time second-guessing such trial decisions.


1 See, e.g., Weekley v. Knight, 156 So. 625 (Fla. 1934); Riccio 1 Stein, 559 So. 2d 1207 (Fla. 3d DCA 1990).

Crosby is Jones, 705 So. 2d 1356, 1358 (Fla. 1998); see also Prato v. Graham, 788 So. 2d 393, 395 (Fla. 5th DCA 2001).

3 705 So. 2d at 1358.

4 Id. (emphasis added).

5 Id.

6 See id

7 Id (quoting Davis a Dann-ell, 119 Cal. App. 3d 883 (1981)).

8 See Haisfield a Fleming, Haile & Shan; P.A., 819 So. 2d 182, 185 (Fla. 4th DCA 2002).

9 Id.

10 Crosby, 705 So. 2d 1356.

11 Pronto, 788 So. 2d 393.

12 Haisfreld, 819 So. 2d 182.

13 Herig v Akerman, Senterfitt & Edi­son, P.A., 741 So. 2d 591 (Fla. 1st DCA 1999).

14 See Crosby, 705 So. 2d at 1358; see also Haisfield, 819 So..2d at 185.

15 See Omnibus Order on Parties’ Cross Motions for Summary Judg­ment (D.E. 222), Inlet Condomini­um Association v. Childress Dufji; Ltd, Inc., etal., Case No. 12-21711-CIV (S.D. Fla. Sept. 4, 2013).

16 Id.

17 Id at 11.

18 Id.

19 Id.

20 Id at 11-12.

21 DeBiarsi v. Snaith, 732 So. 2d 14, 16 (Fla. 4th DCA 1999).

22 748 So. 2d 1079, 1080 (Fla. 4th DCA 2000).

23 Id at 1082.

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