You expect satisfactory results when you retain a lawyer, often at substantial fees. And if you did not get the results you expected or lost significant funds, or expended significant funds for an inadequate representation, you may have a claim for legal malpractice. However, losing a case or not obtaining what you expected may not necessarily mean that your attorney committed malpractice.
To have a valid claim for legal malpractice, you must show that you had an attorney-client relationship. Once that is established, your lawyer has a duty of care towards you, providing you with the same degree of skill, diligence, and care exhibited by other attorneys in the legal community. You then must prove that any alleged negligence by the attorney was the proximate cause of your harm or losses or that, but for the attorney’s negligence, you would not have suffered the loss.
A key element of most legal malpractice claims is that the underlying action where the negligence or incompetence occurred must have been valid. If liability in the matter was disputed or your damages were vague or speculative, then any alleged misconduct by your attorney will be irrelevant. In other words, did the attorney’s misconduct or other negligence severely impact your case that led to material damages or loss?
What Constitutes Attorney Negligence?
Attorneys make errors like everyone else, but not all of them rise to the level of malpractice. If your attorney decided not to call a witness at trial or cross-examine a witness, it may have been part of his legal strategy, although it failed to succeed in the end. Other errors, though, are significant enough to warrant closer scrutiny and may be sheer incompetence. These may be:
- Failure to file your case on time or within the statute of limitations—as a result, your valid claim is forever barred
- Neglecting to investigate your claim properly–it would have uncovered facts favorable to you and given you a substantial settlement or judgment
- Not knowing the relevant or applicable law—failing to research the law leading to incorrect advice or not filing motions that materially and adversely affected your case
- Neglecting to include other culpable parties who could have substantially contributed to your claim
- Making false statements in court documents—this can lead to dismissal of your case, sanctions, or exclusion of evidence
- Not following court orders or schedule—leading to possible dismissal of your claim, exclusion of witnesses or evidence, and sanctions
- Improper drafting of a will—resulting in costly probate fees from family disputes, not following the intent of the decedent, and tax consequences that could have been avoided
- Improper settlement of a case—not informing you of the settlement or attorney settled for an amount you never authorized or consented to
- Incompetent handling of an appeal—not including issues that could be reversible errors or citing the proper case or statutory law that the trial court failed to follow
- Mishandling of funds—this can also be breach of fiduciary duty
Knowing if your attorney committed malpractice is not easy in most cases. Only an experienced legal malpractice attorney can properly advise you on whether your suspicions are valid and if you have a good opportunity to get the justice that was denied to you.
Retain a Legal Malpractice Attorney
Although not all suspected attorney errors or seeming incompetence are legal malpractice, consulting with an experienced and seasoned legal malpractice attorney is worthwhile. At Burns and Jain, your case will be carefully examined to determine if malpractice did occur and if you have a valid compensation claim. Call us at (617) 227-7423 for an in-depth consultation.