Pursuing or defending a legal matter requires the client’s attorney to be reasonably competent and skilled in the applicable area of law. If the attorney’s conduct fell below a certain threshold or standard of care, it may be considered legal malpractice. One aspect of incompetent representation is inadequate investigation of a case.
For any legal malpractice claim to prevail, your legal malpractice attorney must satisfy the elements of this cause of action:
- A duty of care existed. This occurs when an attorney-client relationship is formed when the client enters into a retainer agreement with the attorney, or he offers legal advice at the client’s behest. The duty of care is that the attorney must possess a minimum standard of competence, skill, and knowledge ordinarily exercised by other members of the legal community.
- The attorney’s conduct fell below the standard of care
- The actions or omission of the attorney were the proximate or direct cause of significant harm or damages to the client
- The client’s damages are not speculative, are substantial, and attainable
A client is not necessarily obligated to hire only an attorney with years of experience in the applicable area of law. Attorneys often take cases where their experience may be limited, but they need to become competent by researching the case law and statutes, taking continuing education courses, observing cases being litigated, second-chairing at a trial, or associating with another lawyer with the requisite knowledge, experience, and skills.
Examples of Inadequate Representation
An attorney must diligently focus on the client and her claim to avoid possible legal malpractice claims. Communication is key and promptly responding to a client’s inquiry and documenting what was discussed will avoid disputes and misinterpretations. Unfortunately, some attorneys do not adequately explain the legal process, fail to update clients, and miss key deadlines because of poor management skills. Taking on too many cases or having drug or alcohol or family issues that interfere with competently representing a client can have grave consequences.
Also, failing to appear in court without an adequate excuse and not conducting the usual and necessary discovery in a case can easily lead to a legal malpractice claim.
An attorney must thoroughly know the case and ask relevant questions at depositions and at trial. By cross-examining opposing experts or hostile witnesses, an attorney can expose weaknesses in the opposing party’s claim or argument, or argue that their credibility is an issue. Failure to ask reasonable questions or to conduct a competent cross-examination may be grounds for a legal malpractice claim.
Other instances of an attorney’s incompetence at trial are falling asleep in court, appearing in court while intoxicated, or failing to call key witnesses. Any of these may result in the client’s conviction or loss of freedom. Defendants in criminal cases usually file a motion for a new trial based on inadequate representation, though this is generally a tough standard to meet.
Other cases may show that an investigation would have exposed misconduct or misrepresentation of facts in a business transaction that, if known, would have resulted in a different result and substantial compensation to the client.
Duty to Investigate
When we retain an attorney for a criminal or civil matter, we expect her to have the necessary knowledge of the law and the skills to handle the matter competently, whether prosecuting the claim or defending against it. The standard of care includes adequately investigating the case and its facts.
For example, a personal injury claim may initially appear to have no clear liable party since both blame the other for the accident. A thorough investigation may reveal that surveillance cameras in the area videotaped the accident, clearly showing the defendant’s liability. The traffic accident report may have listed witnesses who were at the scene but who gave conflicting statements. By finding and questioning these witnesses, the attorney may discover that a witness did not observe the accident and only assumed one party was responsible or gave incorrect or not credible information to the officer.
A divorce case involving substantial assets, property, or custody of children requires a thorough investigation of the opposing party’s often hidden assets, debts, and business interests. A parent may have concealed substance issues or have violence issues that can certainly affect a ruling on custody and visitation. Not properly investigating these issues can substantially affect the outcome of a case and cause serious financial and emotional harm to a client.
In a criminal case, a defense lawyer should find and question witnesses to the crime or even diagram a crime scene to determine if eyewitness accounts are consistent with the scene. Questioning witnesses may uncover biases against the defendant, and who will admit police pressured them or deliberately misled them at an in-person or photo line-up to identify the defendant.
Retain a Legal Malpractice Attorney from Burns and Jain
All attorneys must conduct an adequate investigation of each case, though not every failure to investigate is a credible legal malpractice claim. If you suspect your attorney failed to conduct a thorough investigation that would have resulted in a favorable outcome, consult with one of our legal malpractice attorneys.