What Exactly is Legal Malpractice?
The definition of legal malpractice is quite simple. A even a cursory review of the books will lead you to this definition: "legal malpractice occurs when an attorney fails to competently perform his or her legal responsibilities, and causes damage to his or her client as a result." Legal Malpractice: Theory and Practice, Kathy Nesser, ABA Section of Tort and Insurance Practice.
A competent attorney must be engaged in what the ABA refers to as "Due Care." This is a standard that requires all attorneys to practice the craft of law with the requisite knowledge , skill, thoroughness, and reasonable preparation for the matter at hand. Here, we help clients who have charges of legal malpractice against their attorney based on an absence of due care.
Legal malpractice does not require a monetary loss. It may involve a loss of time, a loss of opportunity, or "tarnished reputation." In addition, legal malpractice practice has a lengthy statute of limitations, generally six years.
When You Should Consult a Legal Malpractice Attorney
If you are reading this, you may have a gut feeling something has gone horribly wrong in your case. Or, you may have already received a negative judgment. Or, you might have been taken advantage of in a contract dispute and want justice done. It will be helpful to understand some signs which will point the way toward hiring a legal malpractice attorney. A first sign is when you reach out to the attorney several times about something that is concerning you, but they refuse to talk to you. You need to know they will not give you any meaningful answers. That’s a red flag. A second sign is when that attorney is clearly "overwhelmed" by the case(s) and unable to manage them. This can happen with busy attorneys. An overwhelmed attorney just stops communicating. The case seems too much effort and that person turns the other way. It is the responsibility of the attorney to keep the client up to date. Not their assistant, office manager or the paralegal. The attorney. A third sign is when the attorney spends more time talking and posturing in court than spending the needed time with the person’s case. Often people speak of feeling intimidated by the lawyer in court and how the lawyer treats their own clients poorly. If in a contract dispute, analyze what they say. Do they force a settlement (for them) when you are not giving approval? It might just be that they refuse to attend to any aspect of the contract dispute or negotiation for you. That is another sign. Sometimes the attorney allows themselves to be influenced by others to back off. If all three things are happening – a lack of communicating, appearing busy all the time and allowing outside influences to sway them, it is time to hire a legal malpractice attorney.
How to Select the Best Legal Malpractice Attorney
Following the "big" case loss, many clients go looking for a legal malpractice attorney. This is a specialized form of legal professional who specializes in the area of professional negligence by another attorney. The client should find an attorney who has the same credentials and years of experience as their first attorney, ensuring that they have both gotten it wrong and that at least one of the lawyers was competent. The experience in the subject matter case is often helpful so that not too much time will be lost retraining a new lawyer.
Look for recommendations from family and friends, or get a reputable referral from another lawyer. Check for bad press or negative referrals on the internet.
Typical Issues in Legal Malpractice Cases
Even though a legal malpractice case seems straightforward on the surface, there are numerous challenges a victim of negligence faces. Often the very fundamentals of the case must be proven. If you are to prevail, you not only have to show that your former attorney was negligent, but if it is a legal malpractice case that springs from an underlying entity case, then you must show that: (1) there was a viable cause of action to begin with; (2) that it was worth pursuing to judgment; and (3) how much damages were involved at each stage of the case.
It gets more complicated when the underlying case was one in which damages are recoverable, but they are difficult to prove. For instance, it is suicidal for a legal malpractice attorney to take a case involving loss of future earnings. While the existing client might be willing to testify about his/her earning ability, future potential is often reliant upon success. He/she is unlikely to estimate an earning capacity that paints a lesser picture than the rosy one that waits in the future. He/She might even be less than truthful about his/her earnings. In short, the extent of damages is often embellished. So where is the Justice in a legal malpractice case?
One of the best reasons for taking the case is that the other party is not truthful about his/her losses. This defendant’s wrongdoing only emboldens him/her to claim larger and larger losses. It becomes impossible for the underlying lawyer to adequately cross-examine the party, let alone secure expert witnesses.
A final element is the gap in time between the date of the original litigation and the prospective legal malpractice case. Is the legal malpractice attorney able to show that the passage of time caused a change in the facts of the underlying case, explain them away, or just stretch his or her memory? These are the challenges of a legal malpractice attorney.
The Legal Mechanism of a Legal Malpractice Case
The legal process of a legal malpractice case is not much different than in any other type of civil case. You start with a complaint and a summons, and work your way through depositions, fact finding, and settlement negotiations. If at the end of the process a fair and equitable settlement cannot be reached by both parties, then a case will go to trial, and a verdict will be rendered.
The process involves four essential steps:
• Introduction
• Discovery
• Negotiation
• Trial
We will go through each step in detail, but first, it is important to understand in which court your malpractice case would be filed. Malpractice cases are usually brought in civil court in either state or federal court. Often times we get people come into our office that do not understand not only the time limitations in which they have to file a case, but also which type of case to bring. The rules between state and federal court can be both similar and different, and a case might be called one thing in federal court, but called something different in state court. Understanding the rules, and knowing which court you should bring your case into are essential to filing a successful case. All cases in civil court proceed in roughly the same manner. A summons and a complaint is filed, and a response is given to that complaint. Afterwards, both parties prepare for discovery. In this period of time , both parties will gather information, check facts and perform assessments or examinations if necessary. This period is also used to clarify the main issue of the case. In building a case against your attorney, the point of the discovery period is to begin focusing on the negligent actions of your attorney. This is an important time when your attorney serves as a legal advisor. Your attorney can help you decide whether or not filing a malpractice case is worth the time, money and effort. Even if your attorney finds that your case is strong and it is essential to move forward with it, they can still offer you some options on how to settle. In many legal malpractice cases, the party at fault is open to arbitration, and will save money and time in the end by admitting fault and paying-off the other party. However, if they refuse to settle without going to court, it is time to prepare for trial. The judge and jury now become involved. If the case ends in a settlement, all parties involved must agree to the terms of the settlement before any payment is made. In some cases, payment is actually made during the hearing. These final steps may be the fastest, but are certainly not the easiest. You can help your case by being prepared for every step, and being there every step of the way. According to PLMC, "if you serve as your own advocate in the case, it will take a lot of time and effort, but it will be well worth your while."
Some Possible Results of a Legal Malpractice Case
The end point of a legal malpractice lawsuit may be a settlement, a trial verdict, or even an appeal. The settlement of a case may come at any time, and it can include money to the plaintiff, or simply a promise to make good on the damages that the legal malpractice attorney allegedly caused. Generally, if the overage of a settlement is monetary, the defendant’s insurer pays. It is rare that a legal malpractice case goes to trial, and as you can see from the trial section below, it is difficult for a legal malpractice plaintiff to win a trial. Settlement takes place in two general ways, first, negotiation during the lawsuit itself (which may be the day before trial) and secondly, by way of mediation or arbitration.
At the end of a full blown trial, a decision can be made by the judge or jury. The results for the legal malpractice plaintiff are again divided into monetary or non monetary recoveries. An example of a non monetary recovery is to reverse some court adjudication or award the attorney with the capacity to file a new motion. For a monetary recovery, it is not enough to win on the merits of the case. The plaintiff must also have made out his case for damages, i.e. the monetary amount of the lawsuit at issue.
An appeal may be possible and appropriate for either plaintiff or defendant. Here is where the merits of the case may be challenged if it went against you, or the amount of the damages. Appeals are rarely won.
Avoiding Legal Malpractice
Although there are many different circumstances and particularities in a legal malpractice case, there are some general things that may be done to prevent a malpractice incident. The first is to be sure that any bills for legal services are capable of being paid. Now that might seem obvious, but it’s very easy for an individual attorney or law firm to miss the significance of the fee agreement. As we said above, a legal services agreement is in one sense a contract. A party needs to be able to provide services, and a client needs to be able to pay for those services. Miss the point at which the checks cease payment and you may very well have a malpractice action brought against you.
An obvious way to prevent any such lawsuit is for an attorney and a client to properly understand the nature of the services being rendered, and to maintain an open line of communication throughout the course of litigation. If an attorney fails to communicate with a client about the progress of their case, at some point the client will realize that no progress is being made, and this may make the client question the competency of his or her attorney . If the client does not understand that the expenses and obstacles have caused the delay, the attorney may be placed in a difficult position unless the client is fully educated and informed as to the status of the case and what is being done.
It’s also important for attorneys to avoid potential conflicts of interest when practicing in a niche area of the law. Some attorney-client relationships are fairly straightforward, while others are simply a recipe for disaster. While not all conflicts of interest are avoidable, the gravest ones will usually involve parties that have a clear adversarial relationship. An attorney representing a plaintiff in a personal injury case may be tempted to represent the defendant in another matter, even if the cases are totally unrelated. Practicing in an area that is far removed from your usual practice can result in missed deadlines and undelivered notices that can affect a case outcome. And if an attorney is found to have breached ethical rules, they may not be able to recover damages. Hiring of a legal malpractice attorney should never be taken lightly, so it’s a good idea to avoid any legal malpractice problems in the first place.
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