In legal malpractice cases, the attorney’s actions play a pivotal role. Malpractice, a unique subset of tort law, is complex and involves investigating and possibly litigating two separate actions. The claimant must first demonstrate that the attorney who was representing her failed to meet an accepted standard of care in handling the case. Furthermore, the claimant must show that this failure, or the attorney’s incompetence, directly led to harm or demonstrable damages. Second, though a plaintiff might prove incompetence on the attorney’s part, the underlying case must have had merit, and the party responsible for the harm solvent to compensate for the proven damages.
Examples of attorney incompetence that can be the basis for a legal malpractice claim are:
- Failure to meet filing deadlines
- Overbilling a case or charging for services not performed
- Taking more from a settlement that the law allows or to which the attorney is entitled
- Failing to communicate with the client
- Drafting an agreement or legal document with obvious errors
- Failing to advise a client of obvious tax consequences or other risks
In most cases, your legal malpractice attorney may have to retain an expert to explain the standard of care expected of an attorney in this case and whether the attorney’s conduct breached that standard. Expert testimony can be a crucial part of the legal process in proving that the attorney’s actions were malpractice. If the court or a jury finds that the attorney’s actions constituted malpractice, then we go to the second proceeding.
Proving the Underlying Case
The next matter concerns the merits of the underlying case. In a case where the attorney failed to file the lawsuit before the expiration of the statute of limitations, the client must show that the lawsuit was meritorious and would have resulted in a monetary judgment for the client. If liability is disputed, the legal malpractice attorney may, for example, have to retain an expert such as an accident reconstruction experts to prove liability. Damages in a personal injury case are often disputed as well, so there likely will be medical testimony to prove the nature and extent of the plaintiff’s injuries or that despite the plaintiff’s pre-existing injuries, the accident was the proximate cause of the plaintiff’s injuries and damages. In these cases, the plaintiff may only recover minimal damages if they are not adequately proved.
Should a jury decide that liability was not proved in the underlying case, then the attorney’s incompetent handling of the case will be inconsequential to the plaintiff’s claim for damages, and the claim will be denied.
Other legal malpractice claims may be somewhat easier to prove or not. Where an attorney failed to advise a client of a party’s malfeasance in prior contractual dealings or that the agreement posed significant tax implications or other risks, the plaintiff need only show that, but for the legal malpractice, the plaintiff would have negotiated a better deal or not have entered into the deal at all. Still, the legal malpractice attorney will likely have to retain an expert on business or tax matters to illustrate the standard of care by an attorney in such matters and that it was breached in this case.
Retain a Legal Malpractice Attorney from Burns and Jain
As you can see, a legal malpractice case requires an experienced and dedicated attorney who can handle both aspects of a legal malpractice claim. Choosing the right legal malpractice attorney is crucial to the success of your case. A legal malpractice attorney from Burns and Jain has the skills, resources, and attention to detail that such cases require. Call us today at (617) 227-7423 for a free consultation about your case.