Legal Malpractice: Inadequate Investigation

If you find yourself in a situation where you’ve received an unsatisfactory result in a legal matter, such as a low monetary verdict, loss of a valuable asset, or dismissal of a claim, consider the possibility that you may have been the victim of an inadequate investigation of your case by your attorney. This could potentially provide you with the grounds for a legal malpractice claim.

Elements of Legal Malpractice

Legal malpractice is negligence on the part of an attorney. Similar to other negligence claims, you have the burden of proving the following elements:

  • Your attorney owed you a duty to use reasonable care—the duty is created when there is an attorney-client relationship
  • The attorney breached his duty of care
  • The breach of his duty was a proximate cause of your harm
  • You suffered damages as a result 

Damages are an integral part of any negligence claim. You must show that had your attorney not breached his duty of care, you would have recovered certain compensation, property, or other benefits denied you or that you would have prevailed as the defendant but lost due to insufficient investigation. Your damages cannot be speculative but may be based on a reasonable outcome from similar cases. 

What is the Duty of Care in an Investigation of a Claim?

When you retain an attorney to represent you in any legal matter, including a personal injury case, probate, property dispute, or breach of contract, your attorney has a duty to provide you with zealous advocacy that meets the standards of reasonable professional legal representation. A thorough investigation of your claim is part of that duty of care towards you. An investigation in a civil matter generally means doing proper discovery:

  • Submitting interrogatories to the opposing party (written questions to be answered under penalty of perjury)
  • Interviewing witnesses
  • Deposing witnesses and the opposing party or parties under oath
  • Requesting relevant documents 
  • Requesting admissions from the opposing party
  • Obtaining data from surveillance cameras or electronic devices 
  • Retaining an expert to examine an accident site, review documents, or provide an expert opinion 

Reasonable care in conducting discovery generally means what a reasonably competent attorney practicing in that area of law would have done under similar circumstances. For example, in a car collision, there may have been percipient witnesses whose testimony or statements would have clearly established liability. The accident may have occurred in an area with surveillance or traffic cameras that clearly established liability.  The attorney’s failure to find and interview those witnesses or to request a subpoena for the surveillance footage before it was deleted, which would have demonstrated fault on the opposing party but led to a dismissal of the plaintiff’s claim, might form the basis for a legal malpractice claim.

The discovery process also has rules that attorneys must adhere to, including deadlines for requesting documents, following the timeline for deposing experts, and making timely and appropriate motions if the opposing party refuses to turn over documents or other evidence. 

What Can Happen If There Is Inadequate Investigation?

Your damages are what you would have received if the underlying matter, such as a car accident injury claim, had not been handled carelessly or negligently. In contractual matters, your damages may also be loss of economic opportunity or profit, so long as you can adequately demonstrate your lost profit, which cannot be speculative. 

However, even if your attorney appears to have neglected his duty to investigate your claim adequately, you still must prove that the underlying matter had merit. If a court determines that despite your attorney’s failure to investigate your claim adequately, your claim for injuries or damages was speculative or subject to questionable liability, you risk having your legal malpractice claim dismissed or being forced to negotiate for a minimum settlement. 

Retain a Legal Malpractice Attorney from Burns and Jain 

Legal malpractice claims are difficult to handle and often hard to prove. Few attorneys handle such matters, but at Burns and Jain, our legal malpractice attorneys have the experience and resources to tackle such cases. Call our office at (617) 227-7423 for a free consultation about your legal malpractice claim.

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