Legal matters involving business transactions and disputes require a seasoned business attorney’s skills, experience, and knowledge. When poor or incorrect advice, a failure to investigate the facts and circumstances of a dispute, or ethical violations lead to significant business losses or even closure, clients may consider a legal malpractice claim.
Elements of a Legal Malpractice Claim
A legal malpractice claim consists of certain elements, each of which must be proved by a preponderance of the evidence. These are:
- Existence of an attorney-client relationship
- A duty of care to the client to use those skills and knowledge that other attorneys practicing in that area of law would reasonably exercise
- Breach of the duty of care
- The breach was the cause of the client’s losses
- The client suffered measurable damages
Although you may suspect or have evidence that your attorney was negligent or mishandled your case, his or her misconduct does not always satisfy each element of a legal malpractice claim. Many claims fail because the alleged breach of the duty of care or the misconduct or incompetence of the attorney may not have been the direct cause of the adverse outcome.
Examples of Legal Malpractice in Business Cases
There are many ways that an attorney can commit malpractice in a business case:
- Failing to negotiate the deal properly, or protect you in the contract
- Failing to file a claim within the statute of limitations
- Missing key deadlines set by the court
- Not appearing in court or being unprepared
- Neglecting to make patent or trademark filings
- Settling a case without the consent of the client
- Not advising the client of a settlement offer
- Failure to advise of conflict of interest – in business cases this is often because of representation of a company and or the key folks in the company can be a conflict
- Inadequate discovery during litigation
- Misappropriating client funds
- Incompetent handling of the trial
Most cases settle, but some do proceed to trial. Trial practice depends on the thorough preparation of your attorney, especially during discovery, when documents and witnesses can provide information about what legal strategy to follow, whether it should change at any time, and the possible opportunities for success. Attorneys need certain trial skills, including presenting evidence, examining and cross-examining witnesses, and making timely objections to preserve possible court errors for later appeal.
Evidence Needed to Prove Causation
If you lost your business case, the court dismissed your claim, or you otherwise received an unfavorable verdict or were forced into a settlement that resulted in substantial losses to your business, it may have been the incompetence or unethical conduct of your attorney that was the cause. Proving it, however, can be difficult. You will need to provide solid evidence to prove causation including:
- Collecting all applicable business or financial records, profit and loss statements and other records that can show to what extent your business suffered after the alleged misconduct or incompetence occurred.
- Gathering correspondence with the attorney and other key parties including emails, text messages and letters that may reveal what advice your attorney gave, the legal strategy that was followed, and concerns you had about the attorney’s conduct and strategy. It may show that the attorney’s conduct and advice deviated from the accepted standard of care.
- Expert testimony—your legal malpractice attorney will need a legal expert to explain the standard of care in your case and that your attorney’s actions breached it, such as rendering the wrong advice, conducting a minimal or flawed investigation, failing to object to or not including material evidence for use at trial, or having made misrepresentations to the client about the law or status of the case. A financial expert can provide a detailed assessment of your business losses, including those difficult to demonstrate, such as loss of intellectual property.
Your legal malpractice attorney can review these records and the validity of your claim to determine if a malpractice claim is warranted. But if there were other reasons or causes for your business losses or you cannot adequately prove your damages, then any negligence or misconduct by your attorney will not form the basis for a malpractice cause of action.
Consult a Legal Malpractice Attorney from Burns and Jain
Although not all business losses are attributable to the attorney. You may, however, suspect that how your case was handled was the direct cause of your losses. If so, do not hesitate to contact a legal malpractice attorney from Burns and Jain so that we can review your claim and case files and properly advise you.