Legal Malpractice Explained
Legal malpractice occurs when an attorney does not competently perform a legal duty or fails to make certain motions or files necessary documents within required timeframes. This not only can result in financial damages, but the inability to remedy a situation that is already headed in the wrong direction. Legal malpractice often occurs when a lawyer:
Legal malpractice can occur in any one of these situations and more . The impact of legal malpractice can be alarming for the client who must live with the penalties of the error or omission of counsel. Legal malpractice is different than the other claims we often hear about such as breach of contract, court date mis-calendaring, or simple errors in various filings. Legal malpractice requires that the client actually show harm or total loss. If the competent attorney can still mitigate the damage or recover the situation, then there may not be a case for legal malpractice.
Warning Signs You Need to Hire a Legal Malpractice Law Firm
The first and foremost indication that you need an attorney to redress the problem is a substantial financial loss. You should sit down and be as exact as possible as to the amount of financial loss sustained. The issue could have been with the settlement of your case. It could also have been an amount that could have been recovered but was not. Or it could have been a residence that was auctioned off to satisfy a debt when the attorney should have stopped it.
If you think that your attorney made a mistake, you should sit down and determine what the mistake was, where it occurred in the course of the case and how much money you lost. You must meet these same criteria to succeed in a legal malpractice suit. Figures and testimony are the lynch pin to a legal malpractice case.
On the other end of the spectrum are cases where a stupid blunder has been made by a lawyer, but you have not suffered any real dollars and cents loss. Your lawyer should be serious, practical and diligent, but in fact, may not be much more than a potted plant in a corner, or worse, a wholly incompetent buffoon. Whether you have suffered real money damages is the issue. Your time, and your stress levels may be negligible, so maybe the law is the only thing you should seek from your attorney. Another professional ethics opinion, slapping your lawyer on the knuckles, will do.
Searching for Legal Malpractice Lawyers Near Me
Effective strategies for locating a legal malpractice attorney include using online legal malpractice directories, client referrals and maintaining a thorough search on the basis of confidence and trust. Online directories such as Findlaw, Lawyers.com and Legalmatch can provide you with the names and contact information of legal malpractice attorneys near your area. These directories present an extensive list of legal malpractice attorneys in the U.S. states alone. The importance of such directories is that they present the legal malpractice attorneys in a well organized manner. The attorneys are organized by their respective locations, contact information and areas of expertise. In addition to providing these details, the listings of legal malpractice attorneys in some of these online directories include client reviews and peer reviews of the legal malpractice attorney you are interested in. The client reviews can be very helpful. Therefore, it is best to visit the online directories and scrap the reviews from their respective websites. Having the reviews from the clients of the legal malpractice attorneys you are interested in should aid you in making your decision to select the legal malpractice attorney with whom you are confident.
Questions to Ask Legal Malpractice Attorneys
When you visit the website of any potential legal malpractice attorney, or speak with them, you should not be however impressed by their expertise or experience yet. Rather, you should be asking them a series of questions to determine whether they are the right fit for you. The following is a list of some important questions you should ask:
- Have you litigated cases that are similar to mine or hired attorneys to prosecute cases on your behalf and what were the results at trial?
- Do you have a policy that protects clients in the event I lose at trial and what is the limit of coverage?
- Did you work in a large firm as a junior associate?
- Do you actually litigate cases or refer them to other attorneys or firms?
- Do you attend the first day of trial?
- Are you involved in E-Discovery?
- What is your billing methodology?
- Will you give me your cell phone number?
- Who will actually be handling my case? How involved will you be?
- What percentage of your practice is dedicated to legal malpractice?
Filing a Legal Malpractice Case
The stages of bringing a legal malpractice lawsuit are:
Consultation: At the initial consultation, with a legal malpractice attorney, an attorney will closely examine the client’s claim for legal malpractice. The legal malpractice attorney will discuss the potential merits of the case and, in addition, advise the client on whether or not the case can be handled in court.
Retainer Agreement: If a legal malpractice and/or disciplinary action is appropriate , the legal malpractice attorney will present the client with the retainer agreement. This agreement governs the attorney-client relationship.
Investigation: An experienced legal malpractice attorney will investigate the legal malpractice case in order to determine the merits of the case.
Mediate & Negotiate: Depending on the needs of the client, and the evidence provided by the client regarding the services of the attorney in question, a demand for mediation or arbitration will be filed.
Filing the Claim: When the pre-suit process is complete and the firm is ready to file a legal malpractice claim, the suit against the negligent attorney will be filed in the proper venue.
Outcomes of Legal Malpractice Cases
These potential outcomes are not all that are possible, but they account for most of the results. Most all of those involve some measure of victory for the legal malpractice client, and all of them necessitate the use of a qualified legal malpractice attorney and law firm. The first is the settlement. The defendant-attorney settles with the client, usually before litigation starts. Sometimes this is paid either in cash or on an installment basis. Other times the defendant agrees to "undo" the mistake he made, or goes as far as transferring practice to another attorney. While a cash settlement is preferable to a settlement where the defendant wants to keep practicing, litigation will be avoided in either case. Other times the matter proceeds to the litigation stage. These cases go one of two routes. The case comes to a successful verdict or are settled before verdict. This is a complete victory. However the award is made (theory of recovery is based on, for example, the expenses of a second legal proceeding that was lost due to the defendant’s inaction), the client wins. Unlike the settlement, there is no need to pay any of the legal malpractice attorneys on contingency, even if the legal malpractice client went with this type of fee commitment. The second avenue is when the client loses. In this case, the case can go further than if it had never been filed, or it concluded where it would have if no suit was filed. Very few legal malpractice cases are lost that, but often as not, the matter simply is not pursued. Either the statute of limitations runs out or the client simply doesn’t have the stomach to continue trying against the lawyer. A second case is lost. This is rare because at some point in the second case, the truth will come out and will exonerate the client.
Preventing Legal Malpractice
Doing your homework before hiring an attorney is your best defense. Ask friends and family for recommendations. They might have had a good experience with someone that you can use as a reference. If you are working with someone who comes highly recommended, don’t be afraid to ask them questions if you have them. If they are unable or unwilling to address your concerns, perhaps you need to look elsewhere. It is important to have an attorney that you can communicate with and who is willing to take the time to explain things to you. Also, make it a point to visit their website. This will give you an idea of their experience and what type of services they offer and whether their specialty fits your needs. It also provides you with the opportunity to see their contact information and location/office hours . It’s always preferred to find someone who is conveniently located and available, should you need to speak with them. Never, ever, allow an attorney who you are considering hiring to pressure you into signing their representation agreement. Look over the proposed terms carefully and be sure you are comfortable with all of them before signing. This will help you avoid being bound by an unfavorable provision, especially the one that states the contract is not able to be cancelled, for any reason, for 30 days from the date of the execution of the contract. If you are in immediate need of legal representation, take the time to thoughtfully review, understand and agree to the terms of their retainer agreement instead. Avoid attorneys who seem impatient or rushed when dealing with you. After all, you are the consumer. You are free to ask questions and get the answers you need to make informed decisions.