Legal malpractice claims are complex, often challenging, and can be expensive and anxiety-ridden. A disgruntled client, angry over the unexpected outcome of a claim or case, may turn on the attorney, blame him for the adverse outcome, and file a legal malpractice claim. Because of the time involved, expense, and stress, mediation is often recommended (or even required in some jurisdictions) once a civil suit has been filed; and usually occurs after discovery is complete or substantially complete and all parties know all of the facts that will come into evidence.
What Can Trigger a Legal Malpractice Claim?
Before you have a possible legal malpractice claim, you must establish these elements:
- The defendant attorney had a duty of care towards you. The attorney-client relationship was created if you retained the attorney or asked for and were given legal advice. The duty includes the attorney’s obligation to represent you competently and to use the knowledge and skills reasonably expected of an attorney practicing in that legal community.
- The attorney’s actions or omissions were negligent and breached his duty of care towards you
- The attorney’s negligence proximately caused you damages; i.e., but for the negligent conduct of the attorney, you would have prevailed in the underlying case and not suffered the harm that you did
- Your damages are significant, verifiable, not speculative, and are attainable
One obvious circumstance that can result in a legal malpractice claim is the attorney’s failure to file a lawsuit within the applicable statute of limitations. If you retained an attorney or consulted one about a possible claim and the attorney failed to advise you of the statute of limitations, whether he agreed to represent you or not, he may have breached his duty of care towards you. However, the underlying claim must have been valid and provable by the standard of the preponderance of the evidence.
This requirement means that your legal malpractice attorney must be prepared to litigate the underlying claim, such as the personal injury, business transaction, or real estate deal that was the basis for the malpractice claim. If that claim cannot be proved, your malpractice claim will fail even if the attorney’s conduct was negligence in any other context.
Poor advice may be actionable, especially if it was against a known legal precedent or statute that the attorney had neglected to research. Miscommunication or the lack of communication is another factor that can lead to legal malpractice. It is incumbent on the attorney to remain in contact with the client, to inform her of all developments, and to document all advice given so that there are no possible argument or conflicts over what was communicated.
Why Choose Mediation in Massachusetts?
Mediation is a process whereby an independent party, usually an attorney experienced in legal malpractice and in mediation, will present an unbiased perspective on the case. Generally, the mediator will meet with all parties first and then each party individually and discuss the merits and pitfalls of each party’s allegations and evidence. Mediation aims to avoid further litigation and to find a compromised position. This usually means that each party must be willing to sacrifice or give up specific demands to reach a resolution that may not be perfect, but that satisfies each party.
A mediator can bluntly assess each party’s position and challenge the respective attorneys over their allegations and evidence supporting their stance. It can sometimes be sobering for a party to recognize the weakness in their arguments and their chances at court, and to seriously consider a compromise that will at least give them some acceptable resolution based on the realities of the case.
Litigation is expensive and time-consuming. It may be many months, or years, before your claim goes to trial. Courts are overburdened and understaffed, so delays are common. Mediation is often successful if you want a relatively quick resolution that saves time and money, and you are willing to meet your opponent in a compromise.
Retain a Legal Malpractice Attorney from Burns and Jain
If you suspect that your attorney’s conduct was negligent and was the prime reason for the adverse outcome of your case, then contact a legal malpractice attorney from Burns and Jain. Our attorneys are highly experienced in many aspects of the law, have mediated many many cases, and what is required to prevail in a legal malpractice action. Call us for a consultation about your possible legal malpractice claim.