Attorneys go through 3 years of vigorous study in the law at law school, and many have other degrees such as in business, medicine, or engineering that they can utilize in their practice. Usually, it takes a few years of experience associating with more knowledgeable and skilled attorneys in the law firm before they can attain a competent level in a particular area of the law. Other attorneys gain experience and skills by taking on less complex cases to become familiar with court rules and procedures, motion practice, and other litigation tasks. But not all attorneys, despite their advertising or assurances, are as competent as they should be.
What is Legal Incompetence?
Incompetence may be easy to comprehend but not so easy to prove. Generally, an attorney has a duty of care to clients, defined as practicing and handling a case with the reasonable skill, care, diligence, and knowledge that other attorneys in the legal community possess. If your attorney’s conduct in your case fell below this standard and you suffered substantial harm or damages, you may have a credible legal malpractice claim.
To better understand what legal competence entails, the requirement that you act competently generally falls into certain categories:
- Being diligent—attorneys need to be focused on a client’s case, meet deadlines, and be fully prepared at each stage of a claim or case. It also means communicating with the client and keeping her fully updated on all events affecting the case.
- Skills and knowledge—if your attorney only handles divorce matters, he probably should not be handling a complex business transaction, probate, or felony criminal matter. However, it is not unethical for an attorney to handle a case in an unfamiliar area of the law so long as he obtains the necessary knowledge by researching and studying the matter or associating with an attorney who is experienced and knowledgeable in the issues.
- Having the ability to handle the case—an attorney must have the mental and physical ability to handle a case competently. If he is overworked, has substance abuse or family issues, or simply feels the issues are too complex to understand, then he needs to refer the matter to another more competent and reliable attorney or face a possible legal malpractice claim.
When Does Incompetence Become a Credible Malpractice Claim?
Even if your attorney lacked the knowledge, skills, and experience of other attorneys who regularly practice in the particular legal area applicable to your case and you lost your case, it does not automatically rise to a legal malpractice claim. Other elements of a legal malpractice claim must be met and proved.
Incompetence such as failing to file a claim with the applicable court within the statute of limitations, failing to get client consent before taking a settlement offer, not conducting proper discovery, or failing to perform a thorough investigation may result in the client’s case being dismissed or suffering some harm or monetary damage. However, your legal malpractice attorney must prove that the underlying case on which the malpractice claim is based was credible. You also must have suffered significant damages that are provable, not speculative, and can be collected.
In many cases, the legal malpractice attorney may have to try the underlying case before a jury or judge, referred to as the case-within-the-case. If your attorney fails to prove fault by the defendant or cannot prove that you suffered actual damages that are not speculative, then any incompetent conduct is irrelevant to your claim, and you will not collect compensation.
What to Do If You Suspect Incompetence
If you feel that you lost your case due to your attorney ignoring you, not keeping you updated on your case, or not getting a reasonable explanation for what occurred, you should consult an experienced legal malpractice attorney.
It is important to retain all legal documents in your case. You are entitled to all documents relevant to your case, including the complaint, response, discovery materials, medical and employment records, expert reports, correspondence, court notices, briefs, motions, and other documentation. Copy all emails sent to your attorney and received by you.
Your legal malpractice attorney must determine the nature and extent of the incompetent conduct, if it was the proximate or direct cause of your damages, and if your damages are provable.
Retain a Legal Malpractice Attorney from Burns and Jain
Losing a case may have been due to your attorney’s incompetence, but that and the issue of what you suffered can only be determined by an experienced and knowledgeable legal malpractice attorney. Call our office today for a consultation about your possible malpractice claim. Call for a free initial consultation: 617-227-7423!