Attorneys, like all professionals, are required to uphold a certain standard of care. If an attorney’s actions or lack thereof do not meet this standard, clients who are impacted may have a valid legal malpractice claim.
Each legal claim has specific elements that the claimant must demonstrate by a preponderance of the evidence. While a legal malpractice claim is similar to other negligence claims, there are some key differences to consider.
The elements of a legal negligence claim are as follows:
- Duty of Care: An attorney has a duty of care to their client. When a client retains an attorney or seeks legal advice, a professional relationship is established. The attorney is expected to adhere to a standard of care that reflects the diligence and competence typically demonstrated by legal practitioners in similar situations.
- Breach of Standard of Care: The attorney must have breached this standard of care, meaning they failed to demonstrate the professional competence expected in that specific case in those circumstances.
- Proximate Cause: To establish a case of malpractice, it is essential to show that the breach of duty was the proximate cause of the client’s damages. For example, if an attorney fails to return phone calls, does not disclose a potential conflict of interest, or is inadequately prepared for a hearing, it must be demonstrated that these negligent actions directly led to an unfavorable outcome for the client. If a malpractice attorney can prove that, without the negligent behavior of the initial attorney, the plaintiff would have won the case or received significantly higher compensation, then this requirement is satisfied.
- Client Suffered Damages: The client must provide evidence of damages or harm suffered. Without proof of damages, the legal claim will not succeed.
- Collectability – If we can prove all of the above, we win. However, was the underlying claim collectable? And, if so, is THIS claim collectable – does the attorney have insurance?
Examples of Legal Malpractice
There are numerous examples of legal malpractice:
- Failing to file a claim within the statute of limitations
- Missing court-imposed deadlines
- Inadequate investigation
- Settling a case without the client’s consent
- Consistently failing to communicate with the client
- Misrepresenting facts to the court or the client
- Failing to disclose a conflict of interest to the detriment of the client
- Commingling client funds with the attorney’s personal account
- Giving the wrong legal advice
Missing the statute of limitations is a common type of legal malpractice. To establish a claim, you only need to demonstrate that the statutory period had expired and that your case was not filed in the appropriate court. If the court bars your claim permanently, you may have grounds for a legal malpractice lawsuit.
For other shortcomings by the attorney, you may likely need to conduct discovery to uncover evidence of incompetence. When liability is in question, your former attorney is expected to perform a thorough investigation and reach out to witnesses. Hiring expert witnesses may also be necessary, as any reasonably competent attorney would have done.
If your attorney failed to file specific motions or neglected to respond to an opposing motion, resulting in a significant disadvantage to your case, it’s essential to review the court docket. This review will help you determine which motions were filed and whether your attorney responded appropriately, if at all.
Additionally, if you acted on incorrect legal advice and the correct advice could have been uncovered through reasonable diligence, leading to a clear advantage, you might have a valid claim for legal negligence.
In any case of legal malpractice, you must demonstrate that you suffered damages or that you would have received compensation—potentially even more than what you ultimately received—if the negligence had not occurred.
Case-Within-The-Case
Legal malpractice cases require proving that the underlying claim had merit and that you would have recovered damages but for your attorney’s negligence. Your legal malpractice attorney may need to pursue the original claim in court and try it before the court or jury. For instance, if an attorney failed to file a personal injury claim on time, you must demonstrate the claim’s merit and value, establishing liability and damages through evidence and witness testimony. In cases of undisclosed conflicts of interest or misrepresentation, it must be proven that these issues materially affected the case’s outcome.
Further, you must also show that the original defendant in the underlying case had the means to pay for a judgment either through his own assets or that of an insurer. If the judgment was uncollectable, then the entire claim will not stand.
Retain the Law Office of Burns and Jain
Legal malpractice claims are complex and can be difficult to prove and require the experience and resources of attorneys with a proven record of success in such claims. Call a legal malpractice attorney at Burns and Jain if you suspect your attorney negligently handled your case. We offer a free consultation. Call 617-227-7423.