Attorney malpractice, which is often referred to as legal malpractice, can significantly harm a client when they experience it or an attorney when they’re accused of it.
If you are a wronged client who has directly experienced and been harmed by attorney malpractice, you could be entitled to compensation through a legal malpractice claim. To ensure that your case is effectively processed and that you recover the full damages to which you are entitled, it is helpful to work with an attorney experienced in attorney malpractice cases.
Attorneys rely upon their reputation to draw and maintain business and clientele, and an accusation of attorney malpractice can result in a substantial and negative impact on the lawyer’s business. Few attorneys have experience advocating for other attorneys who have been accused of legal malpractice. However, it is crucial for any attorney who has been accused and questioned regarding professional liability issues to seek the proper legal guidance to help get them to the best outcome possible.
Accused attorneys need advocates who will work tirelessly to identify the best possible outcome in their attorney malpractice dispute and handle all negotiations with the opposing party to make it happen. The ideal outcome is a pretrial settlement based on a demand letter that the attorney advocate will draft and submit at the outset of the case. This letter generally lays the foundation for future negotiations. If pretrial negotiations do not result in a mutually satisfactory agreement for the parties involved, the next step will be in court.
In this article, we’ll explore three of the most common types of attorney malpractice, what kind of parties are harmed by them, and what damages the harmed parties could be entitled to in compensation. Whether you are a client who has been harmed by attorney malpractice or a lawyer accused of it, an experienced professional liability attorney can help you achieve the best possible resolution in your case.
#1 Failure to Meet Deadlines and/or Timely File a Case
The practice of law is one that revolves around filings and the deadlines that determine whether or not they are timely. It takes a thorough knowledge of your local laws and procedures to understand the intricacies of filing cases, submitting evidence, responding to motions from the opposing party, and even collecting your damages after you have won.
Individuals who have been harmed by attorney malpractice need to understand that their ability to collect damages after being harmed is governed by the “statute of limitations.” This is basically an expiration date for your right to file a suit to collect damages for a specific incident or accident. For example, the statute of limitations for personal injuries and fraud in Georgia is two years, while there is a four-year statute of limitations for debt collection, injuries to personal property, and other offenses. If you miss the statute of limitations for an injury, you may forever lose the ability to pursue those damages. Further, if you experienced a personal injury and your attorney failed to appear at the hearing on your behalf, the court could rule in favor of the defendant.
Whether or not the courts would allow you to appeal a case because your attorney missed the hearing is at the judge’s discretion, and there are no guarantees. Moreover, the appeals process can be both time-consuming and exceptionally expensive. Your attorney's failure to file key documents and responses can inhibit your case or cause you to lose it entirely.
Putting together an attorney malpractice case requires the gathering of evidence, drafting of the claim, submitting it to the attorney’s malpractice insurance provider, and then undergoing an extensive process of negotiation. Also, the insurance company may deny your claim outright, which can require an appeal. If the appeal is not successful, your only option will be to sue your former attorney in a court of law. This requires an appearance and an argument, and the judge will determine the final outcome.
Given the complexity of legal malpractice, it is beneficial to work with an attorney of your own throughout the process. Your attorney will step into your shoes and take over every step of the process, from gathering evidence to seeking and getting the best possible damages on your behalf. Taking a crash DIY course on how to practice law after you have been harmed by attorney malpractice so that you can step into a courtroom and sue for your damages might not be the best use of your time. Instead, seek help from a licensed legal professional.
#2 Failure to Effectively Know and Apply the Law
The American Bar Association notes that one of the most common forms of attorney malpractice is the failure to know and apply the laws relevant to the case at hand.
Attorneys are not unlike any other persons in any field in that their level of quality will vary. While all practicing attorneys with a license to practice must be members of the State Bar, their experience, expertise, and areas of practice will greatly differ. Attorneys are not unlike doctors in that they often choose a particular area of practice to focus on so that they can gain a greater depth of understanding and a higher skill level. For example, in the same way that you would not go to a foot doctor for an eye problem, you should not go to a business attorney for your legal malpractice case.
When attorneys practice in areas of the law they are not familiar with, it can be difficult to provide clients with adequate legal services. The courts often apply seemingly unrelated or obscure laws to cases, and if a lawyer has not worked cases in a court before, they cannot know what laws the judge prefers or how to present information to them so that it will be effectively considered.
Law school might educate lawyers about the concepts that underlie modern laws and the concepts behind them, but it is only through practice that lawyers learn how the law is actually applied. Television shows are not entirely inaccurate in their depiction of overburdened courts and under-caring attorneys on all sides of the equation. If you do not understand why your attorney did not advocate on your behalf through the application of relevant case statutes, laws, and other legal precedents, speaking with a well-versed legal malpractice attorney may be your best option.
It can be difficult to recognize when attorney malpractice has occurred, as few clients are intimately familiar with the code of ethics and professional guidelines that govern the practice of law. If you have experienced financial harm as a result of your work with an attorney, it can be helpful to seek out a third-party opinion from a legal malpractice specialist.
#3 Inadequate Discovery
Discovery is the process through which parties to a dispute gather evidence related to the case. Generally, all parties will have a duty to disclose the information that is relevant to the case to one another. However, collecting evidence that you are entitled to have shared with you to support your case is only possible when it is properly requested. The opposing attorney is under no obligation to furnish your attorney with documents and evidence that they have not requested.
Discovery includes a broad range of legal instruments that your lawyer can put to work in support of your case, including:
Requests for production - At the outset of any case, most attorneys will submit a notice of representation to the opposing party or their legal representative, as well as a request for a copy of any and all information related to the case.
Record-keeping notice - Alongside notifying the other party should also be a request that they save any relevant evidence and cease any scheduled software deletion or create backup copies to ensure that all evidence is available for the case.
Depositions and subpoenas - Your attorney can use a variety of legal documents to collect the feedback and opinions of third parties who can contribute valuable information to your case.
Expert opinions - When it comes to attorney malpractice, expert opinions will often determine the outcome of your case. Your legal counsel likely has a network of experts to refer you to in support of additional feedback to most effectively present your case and measure your related damages.
With even a simple blanket request for all relevant evidence, however, your attorney can ensure that you have the proof you need for your case. When the opposing party fails to furnish such relevant evidence after a request, it can be held against them during the proceedings. Unfortunately, despite the ease of collecting evidence in civil cases through properly formatted written requests, some attorneys fail to do so to the detriment of their clients.
Attorneys are obligated to attempt to uncover all information that is relevant to the outcome of the case they are on. A failure to effectively discover evidence can put your case at a significant disadvantage and can lead to an unexpected and harmful outcome. For example, when spouses divorce, the equitable distribution of property requires that all property is accurately and completely reported within the divorce proceedings. When an attorney fails to uncover the financial assets of the opposing spouse during a divorce, the client can experience substantial financial losses.
You can only collect damages that you can prove with evidence, and it is the responsibility of your attorney to gather evidence and apply it toward a beneficial outcome in your case. Gathering relevant and helpful evidence takes time and experience, and attorneys at times have little experience and not enough time to focus on some of their cases. If your case fell through the cracks and you experienced an outcome that led to financial losses, you could have a viable attorney malpractice claim.
How to Prove Legal Malpractice
For a party that claims to have been wronged by attorney malpractice to recover damages, they must prove that malpractice occurred and they experienced measurable harm as a result of it. A legal malpractice lawsuit is similar to a medical malpractice lawsuit in that it must be proven that the general standard of care followed by other professionals in the field was followed.
To collect compensation for legal malpractice, you must prove through evidence that a reasonably prudent and qualified professional would have acted differently in the circumstances of your case. With legal malpractice, it must be proven that an attorney working within the standards of the profession and rules of the State Bar would have made a different decision that would have led to a less harmful and/or more beneficial outcome.
Establishing how a reasonably prudent attorney in similar circumstances would have acted typically requires the opinion of an experienced attorney familiar with the rules. To make your case in court, another attorney will generally have to provide an expert opinion on the matter that can be used as evidence. The perspective of this third-party attorney with a thorough understanding of legal malpractice may be used in pretrial negotiations, or it could be necessary for them to testify in court on your behalf.
Legal Malpractice Attorneys are Experienced in Helping Harmed Clients
When you make the decision to hire a lawyer, you expect that he or she will provide you with legal services that meet the general standard in the legal industry. However, you might not know exactly what the general standard is for the legal service you purchased. If you have experienced financial losses, reputation harm, or other damages as a result of the actions of your attorney, legal malpractice may have occurred.
Identifying instances of attorney malpractice requires a careful review of the related facts and circumstances. To receive the input of an experienced attorney malpractice lawyer, reach out to a local attorney in your area.