How to Get Compensated If Your Lawyer Commits Malpractice

When we retain an attorney to handle a legal matter, we expect a professional to handle it competently and diligently. This includes knowing the law that controls or is applicable to the matter, undertaking the research if needed, performing any necessary investigation, communicating with you and keeping you updated and apprised of the proceedings. When an attorney fails to perform in accordance with expected standards of competence, then you may have a cause of action for legal negligence or malpractice against that attorney.

Like any other negligent cause of action, the elements are the same:

  • The attorney must owe a duty of care to you
  •  His actions or omissions breached that duty
  •  That there is a causal link between the attorney’s omission or error and the harm you suffered
  •  That you can adequately prove or demonstrate your damages

Do You have to Prove the Underlying Claim Even if your Attorney was Negligent?

When a court looks at a claim of legal malpractice, it reviews the underlying claim to see if it had validity. A common occurrence in legal negligence claims is failure to file the claim in the appropriate court before the expiration of the statute of limitations. But even if the attorney failed to meet the deadline, there may be no damages if the court determines the underlying claim lacked merit and thus you suffered no harm, except perhaps the legal fees you may have paid when you retained the attorney. In other words, you must prove the likelihood of success in the underlying case.

Should your malpractice claim be litigated, your legal malpractice attorney has to present the evidence supporting the underlying claim to a jury or judge acting as the finder of fact. This is often referred to as the “case within the case” where your attorney essentially has to litigate two cases.  Also, the malpractice jury does not consider what verdict a jury in the claim would have reached but reaches its own determination. In complex matters, your attorney may need expert testimony to prove what the standard of care was in your case and whether the attorney’s performance breached the standard and committed malpractice. 

How Do I Get Compensated in a Legal Malpractice Claim?

Once you have a favorable verdict, how are you compensated? Many if not most attorneys possess malpractice insurance. Once a claim is presented, the insurer defends the attorney and either negotiates a settlement or takes the matter to trial, mediation or arbitration if applicable after all the pre-trial discovery that would have taken place in the original claim. The damages that you can obtain in a malpractice case are the difference between what you would have received in the underlying claim had it been handled competently and what you actually received if anything.

In Massachusetts, you are not able to obtain compensation for emotional distress such as in a real estate matter or breach of contract cause of action, but you can collect such damages if the original claim was a personal injury matter. Massachusetts law allows emotional distress damages if the lawyer’s malpractice resulted in your being imprisoned as that may constitute exceptional circumstances. 

If the attorney against whom you obtained a judgement lacked malpractice insurance, you can still collect on the judgement by seizing or placing a lien on the attorney’s assets. These would include homes, boats, second homes, bank accounts, or garnishing his or her wages – we have done this many times but it is difficult and often results in low recoveries.

Retain a Legal Malpractice Attorney from Burns and Jain

Finding an experienced attorney for a legal malpractice claim is difficult as most attorneys lack the patience, resources, or knowledge in handling such claims. Also, these can be very difficult, complex and time-consuming if the alleged malpractice is not obvious or the damages unclear. If you feel that your claim was mishandled by your attorney, then call a legal malpractice attorney from Burns and Jain at (617) 227-7423 for a free consultation. 

Leave a comment

Your email address will not be published. Required fields are marked *