“Part of what drew me to the field of dispute resolution was the prospect that one could take instances of difference and use those as opportunities to create value, rather than divide or even destroy it.” Michael Moffitt
His most recent article, Settlement Malpractice, 86 University of Chicago Law Review 1825 (2019), has been awarded the best scholarly article of 2019 by the AALS Section on Alternative Dispute Resolution.
In addition to his work being recognized for its advancement of legal education, the article also received the Professional Responsibility Fred Zacharias Memorial Prize from the AALS Section on Professional Responsibility. The prize was awarded to Moffitt for his outstanding work in legal ethics.
This is the first time that an AALS member has been the recipient of awards from two separate sections for a single article.
Moffitt, who is the Philip H. Knight Chair, has spent his career working to improve the way people resolve conflict.
“Part of what drew me to the field of dispute resolution was the prospect that one could take instances of difference and use those as opportunities to create value, rather than divide or even destroy it,” Moffitt said.
As a faculty member since 2001, Moffitt has used his scholarship to empower lawyers and others to manage complex disputes inside and outside the traditional litigation setting. He teaches Mediation, Negotiation, Civil Procedure, Dispute Resolution, and Arbitration at the law school. Last year, he taught a course called “The Justice System Today” in the Clark Honors College (CHC), and this fall he is teaching two courses to incoming CHC freshmen called “Visions of Conflict.” He served as dean of the law school from 2011 through 2017.
In addition to his teaching, he has written three books, thirteen full length article reviews, and twenty short articles and book chapters about ADR.
Moffit says that his most recent award-winning article was inspired by the stories he heard in law school courses at various institutions on negotiation and dispute resolution. He notes that the academic examples seemed to focus on heroic stories, with skilled advocates, creative neutrals, and talented problem-solvers working legal puzzles until they found manageable outcomes.
“This stood in contrast to the stories with unhappy endings that dominated most of my legal education, where case studies would focus on things like contracts being breached, property being damaged, families being separated, or people being injured,” Moffitt said. “I’d virtually never heard of cases or complaints against lawyers for their settlement-related activity. And so, I tried to find some of those stories - - and upon discovering that such complaints are in fact vanishingly rare, I set out to understand why.”
Moffitt’s current scholarship is focused on new editions of two student-focused books on dispute resolution. He says that several recent Supreme Court decisions have transformed people’s understanding of the legal landscape against which many ADR practices take place. But most of them, he goes on to say, assume traditional forms of legal practice (like litigation or transactional work) rather than the settlement-focused work that many lawyers focus on today.
“As I argue in the article Settlement Malpractice, the legal profession needs to think about ethics and malpractice differently when it considers settlement lawyering.”
Settlement Malpractice Summary
Lawyers routinely settle lawsuits or advise their clients about settlement. One might expect, therefore, that clients routinely complain about some aspect of their lawyers’ settlement services. Ten years of data from eleven jurisdictions paint a vivid, different picture: although the vast majority of civil lawsuits are resolved through negotiated settlements and although complaints against lawyers are common, fewer than 1% of reported legal malpractice cases and only about 1.5% of Bar complaints relate in any way to lawyers’ settlement-related conduct or advice. Even in those instances when clients do raise such complaints, clients rarely prevail. In short, even though lawyers play a prominent role in settlement, lawyers currently operate with no meaningful exposure to complaints about this important aspect of modern practice.
Why do lawyers enjoy this level of de facto immunity? The current legal malpractice system operates on three basic assumptions about lawyering — each of which contemplates the lawyer’s role in litigation, rather than the lawyer’s role in settlement. First, the law assumes that a lawyer’s strategic judgments should enjoy the highest level of deference. After all, we would not want to second-guess decisions about which witnesses to call or which legal theory to advance at trial. Second, the law assumes that any mistake a lawyer makes will be reflected in dampened prospects in litigation. This permits us to employ the case-within-a-case method to determine whether a lawyer’s misconduct caused the client to lose a case they otherwise would have won. And third, the law assumes that clients’ compensable interests are bounded by the remedial powers of the court. Thus, the appropriate measure of damages for any instance of litigation malpractice is the difference between what the court did and what a court would have done if the lawyer had been minimally competent. Each of these assumptions is animated by the limited image of lawyer-as-litigator, and each might perhaps be defensible if the malpractice system dealt only with alleged litigation errors.
The challenge is that these same three familiar principles shield lawyers from virtually all accountability in the context of legal negotiations, even though we live in the age of settlement. The current system need not — and should not — persist. Negotiated settlements are here to stay. Lawyers will continue to play important roles in those settlements. Clients should be justified in believing not only that their lawyers are improving at this aspect of their practice but also that their lawyers are accountable when they fall short.
By Rayna Jackson, School of Law Communications