Legal Malpractice - An Overview
When being represented by an attorney, clients trust the attorney to do everything in their power to ensure the best outcomes. Unfortunately, mistakes can be made during the legal process and result in harm to the client. Below is a roadmap for approaching your legal malpractice case and what to expect throughout the personal injury process.
Proving Legal Malpractice
Attorneys have a responsibility for their clients to act in their best interest. This means avoiding mistakes that harm their clients’ cases. Failure to live up to the professional standards required of a bar-certified attorney can result in substantial damages to the client.
To prove legal malpractice, you must prove that four elements existed:
1. Attorney-client relationship
A relationship must be established between the attorney and the client. This relationship is proven by showing the attorney provided legal advice or assistance. This can be proven through a contract, but also by showing that the parties’ actions demonstrate an attorney-client relationship.
2. Breach of Duty
The attorney must provide representation in the manner any reasonable attorney would. In performing legal services, an attorney must exercise the care, skill, and diligence that are commonly exercised by other attorneys in similar situations.
The attorney’s actions must have been the reason that their client’s case was not successful.
The attorney’s breach of duty must have harmed the client. The harm can be in the form of financial damages or receiving a criminal sentence.
Common Legal Malpractice Cases:
An unfavorable result in the client’s case doesn’t mean there was legal malpractice. Instead, the client must show that the attorney acted negligently or with the intent to cause harm.
● Failure to apply the correct law: If the attorney incorrectly applies the law to your case or fails to use the correct law, these can be crucial mistakes.
● Conflicts of interest: When an attorney fails to disclose they have previously represented a person involved in the lawsuit, they have a conflict.
● Fraud: Fraud typically occurs by misusing client funds.
● Failure to work a case or stopping to work on a case: When an attorney takes a case, they must do whatever is necessary to keep the case moving. If an attorney stops working the case, they are responsible for the harm suffered by the client.
● Failure to meet court deadlines: When the court dismisses a case because the attorney failed to keep up with the deadlines, the attorney is responsible for any resulting damages.
Who to Sue?
While you are likely to sue the attorney representing you as an individual, you will likely be able to sue the firm the attorney works for as well. This is because firms and supervising attorneys are responsible for ensuring their attorneys are working up to the profession’s requirements.
Legal Malpractice Insurance
Nearly all lawyers carry legal malpractice insurance. The insurance company will be the one who pays the damages to the plaintiff. Therefore, when negotiating a settlement, the insurance company has the final say on whether to approve the final dollar amount.
Damages for Legal Malpractice
The damages available to a client for legal malpractice vary depending on the type of case.
● Business/Contract Cases: For a business or individual engaging in a contract, the damages available are typically lost profits.
● Litigation Cases: Generally, the plaintiff will be able to recover the fair value of their case. For example, in a personal injury case, the plaintiff can sue for what they would have recovered if their attorney didn’t commit malpractice.
Step-By-Step Legal Malpractice Lawsuit
Step 1 - Keeping track of legal records
The legal malpractice lawsuit itself will be similar to other personal injury lawsuits. First, you should begin putting together your argument against the lawyer or firm. This includes finding any files and letters that indicate that the four prerequisites of a legal malpractice case were present. Keeping track of these documents in real-time will make it easier in the future to provide this information to your new attorney.
Step 2 - Finding a lawyer
The next step in a legal malpractice case is finding a lawyer to advocate for you. When looking for a lawyer, don’t just type into Google “personal injury lawyer.” It’s just too broad. You want expertise specifically within the legal malpractice space. Ideally, it would be great to find a lawyer who’s already tried a case with your specific type of issue.
Step 3 - filing The Lawsuit
It’s now time to file the lawsuit. Assuming you have a lawyer representing you, your involvement should be minimal. Once the case is filed, the discovery stage comes next, during which your attorney will receive requests for information from the defendant’s attorney. Many times, your attorney will be contacting you to collect the necessary information to respond. You may be required to attend a deposition to give your version of how your case was handled. To evaluate damages, you may have to answer questions regarding the circumstances of the original case.
Step 4 - Negotiation, Settlement, and Trial
Once the discovery process is over, the sides will begin negotiating. Remember, your attorney is required to advise you of any offer the defense makes. If you cannot reach an agreement, the sides will move forward to court assisted settlement discussions involving mediations or settlement conferences with the court. If these options fail, then the court will order an arbitration or have a trial.
Finding The Right Lawyer For Your Legal Malpractice Case
Legal malpractice cases can become complex and intense. Therefore, it is crucial to get the best representation possible. It would be wise to get an attorney that specializes in legal malpractice. Your attorney will be your go-to person until the case is over for legal questions and often as someone to lean on. Attorneys often say they have two jobs, to be their client’s attorney and therapist. Therefore, it is essential to pick an attorney you feel comfortable with and that you can trust.