Planning and strategy are actions lawyers take when handling a case and are vital to achieving the client’s goals. Lawyers may differ in similar cases in how they formulate planning and strategies, but if their conduct is ethical and adheres to the standard of care, a disgruntled client may find that a legal malpractice claim will not stand. If they had communicated their plan and strategy, the client would not likely be disgruntled!
The standard of care to be followed by attorneys is the reasonable skills and knowledge of other attorneys practicing in the same area of law and how they handled your case. Suppose you had an unfavorable outcome in your case that you attribute to your lawyer’s negligence or mishandling of your case. In that case, your legal malpractice attorney will have to show that, but for the alleged negligence, there would have been a different outcome, and one with significant monetary damages.
Planning for the Case
Your attorney should have a distinct approach to your case involving planning and strategy. Planning is how your attorney will handle your case to achieve your goals, while the strategy employed is the thought process to attain the desired outcome.
Typical planning may include:
- Setting timelines for investigating the facts and circumstances of a claim
- Knowing the applicable statute of limitations so that your claim is filed on time and in the proper court
- Knowing what defenses or objections to raise
- Gathering the facts through investigation and knowing which are necessary to withstand an objection to a cause of action
- Conducting a proper and thorough discovery
- Giving the claim the proper time and needed focus
- Delegating certain tasks when necessary
Errors in planning that can lead to a malpractice claim are:
- Failing to file a claim within the statute of limitations
- Not raising proper defenses in an Answer to a Complaint
- Failing to timely object to defenses or allegations
- Misapplying or misinterpreting the law or using the wrong statute, regulation, or rule
- Missing or not preparing for a court appearance
- Lack of communication with the client
- Not obtaining informed consent from the client in certain matters
An attorney who handles a case is assumed to have the necessary skills and knowledge so she can vigorously and competently advocate for the client. An attorney stays on top of the case by establishing deadlines that meet court and statutory requirements and by setting reasonable goals. Suppose the attorney lacks court or trial experience. In that case, there is nothing more educational than observing more experienced attorneys arguing a motion or how they conduct themselves at trial and noting how they introduce and present evidence, examine and cross-examine witnesses, object to testimony and documentary evidence, and offer a logical theory or defense of the case.
Strategy for the Case
Strategizing the case is essential for a successful result. Being objective and candid with the client is necessary if the attorney-client relationship is to succeed since unreasonable expectations by the client and assenting to them can only result in extreme frustration and a possible legal malpractice claim.
Your attorney should thoroughly research the applicable law for your claim and advise you accordingly. As a client, you need to be aware of the claim’s strengths and weaknesses and the opposing party’s reaction or position on the claim so that you can have reasonable expectations. At times, circumstances may change, such as an adverse court ruling on material evidence, the discovery of new information, the disappearance of key witnesses, or other unexpected developments. In these situations, you and your attorney need to consider possible strategy changes to meet your case’s new realities.
Examples of errors in strategy that may lead to a legal malpractice claim are:
- Choosing an unethical or unlawful strategy
- Allowing opposing counsel to bully a client or witness during a deposition
- Allowing opposing counsel to improperly conduct discovery
- Not pleading the best claims or defenses
- Not including all possible or necessary parties in a lawsuit
- Failing to conduct rigorous discovery
- Not identifying and interviewing all material witnesses
- Failing to properly prepare witnesses for depositions or trial
- Allowing someone other than the client to direct the case and establish objectives
- Not understanding or considering other ramifications, such as tax liabilities or insurance coverage
- Failing to file necessary motions or being unprepared when opposing motions
- Using an inappropriate or illogical theme for the trial
- Not working on the case and assuming it will settle
- Making unsound decisions during trial that materially affect the outcome
While all these errors in planning and strategy may appear to be obvious negligence or malpractice by an attorney, a legal malpractice claim can be difficult to prove. The most important element in a malpractice claim is demonstrating that, but for the attorney’s negligence, there would have been a different and favorable outcome.
Consult a Legal Malpractice Attorney from Burns and Jain
While not all conduct by an attorney that fails to adhere to the accepted standard of conduct may constitute a valid action for malpractice, do not hesitate to consult with a legal malpractice attorney from Burns and Jain. Our attorneys will evaluate your claim and advise you on whether you may have a valid claim for relief because of the misconduct or negligence of your attorney.