Legal Malpractice in Massachusetts Criminal Defense; a Difficult Hurdle

Many, of not most, folks who have been incarcerated wonder if they could have received better representation by their attorney.  They work hard at assisting their attorneys with appeals; and often fire their attorneys and file ineffective assistance of counsel motions.  Sometimes successfully!

When I was in law school, I assisted in representing a client who was on death row, in Virginia.  His attorney had never undertaken a murder trial and put all of his resources into defending the crime (which was likely to be futile given the evidence and a confession); unfortunately, he neglected the sentencing part of the case (life in prison verses death) to the grim and ultimately fatal detriment of the client.  We know how critical criminal defense lawyer competence needs to be.

Many folks call us while incarcerated, or after, citing clear evidence that their attorney failed to properly represent them at a hearing or at trial. Usually there are motions or appellate briefs that we can use to assist us to determine attorney negligence.  The law for criminal defense legal malpractice, however, is not what you might think it should be.

The Law in Massachusetts Regarding Proving Legal Malpractice in Criminal Cases

In Massachusetts we have caselaw which makes legal malpractice in criminal cases somewhat restrictive.  It’s a difficult hurdle, we tell our clients.  Glenn v. Aiken, 409 Mass 699 (1991) stands for the proposition that no matter how negligent your criminal defense lawyer was, to recover damages against your lawyer you “must prove by a preponderance [51%] of the evidence, not only that the negligence of the attorney defendant caused him harm, but also that he [you] is innocent of the crime charged.”

Thus, if you could have won on a technicality, and in fact if you did win an appeal or a motion for new trial on a technicality, you still will have to prove, in your legal malpractice trial, that you were, more likely than not, innocent.  Granted, it’s only by a “preponderance” of the evidence, but it’s a big hurdle in many of the potential cases we get consulted on.

The Law in Massachusetts Regarding Damages Legal Malpractice for Incarceration

On the other hand, in legal malpractice cases in Massachusetts there is a helpful law regarding pain and suffering for victims of wrongful incarceration.  See Wagenmann v. Adams, 829 F.2d 196 (1st Cir. September 9, 1987).  Thus, you can get money damages for your emotional distress of being incarcerated.

This is unique as there is no “pain and suffering” damages for victims of legal malpractice generally.  If your lawyer negligently represented your family’s estate, for example, and you spent years undoing his or her negligence, that aggravation is not compensable.  However, time spent in jail, wrongfully imprisoned, is compensable.

Wrongful Imprisonment Pain and Suffering and Emotional Distress Damages

What is time spent in jail worth?  The insurance defense trial attorneys like to cite Limone v United States, 497 F. Supp. 2nd 143.  In that case the federal court determined that $1,000,000 per year was fair for “wrongfully imprisoned plaintiffs” but this not in any way a hard and fast number.  In fact, that Court also allowed monies for “emotional damages suffered prior to sentencing.”

Seek Expert Advice if your Criminal Defense Lawyer Committed Malpractice

Neil Burns represented people charged with crimes in Massachusetts for many years.  Burns & Jain has been representing victims of criminal defense malpractice for decades.  It you were wrongfully imprisoned, and you can show your innocence, call us.  You want someone with experience.  We offer a free consultation so call us at 617-227-7423.