What is Legal Malpractice?
Distinguishing between a lawyer making mistakes and a legal malpractice case can be tricky. Legal malpractice occurs when a lawyer makes decisions that cause damages to the client – either through negligence or the intent to do harm. If you believe you have been harmed by your lawyer’s actions you should consult with an experienced legal malpractice attorney.
When pursuing a legal malpractice claim, you will have to show:
- That you had an attorney-client relationship with the lawyer
- That the lawyer did not fulfill his or her duty to skillfully and competently represent you
- That the lawyer’s actions caused you harm
- And that you suffered a financial loss as a result of his or her negligence or intent
These are the primary aspects of most legal malpractice cases. The task of proving each of these can be difficult, but not impossible.
Proving Attorney-Client Relationship
To begin with, you want to lay the foundation of your case, which means proving that you and the lawyer in question were in fact involved a client-attorney relationship. There are two basic ways of showing this. For one, you can supply a signed contract showing that the lawyer promised to offer you competent representation. Failing this, you may be able to prove the relationship by pointing to certain actions taken by the lawyer in relation to you. In fact, in some states, having a reasonable belief that you and your lawyer are in an attorney-client relationship suffices for proof.
Proving that your attorney was negligent is much like proving that a doctor was negligent in a medical malpractice case. Lawyers must provide a level of skill and care that is comparable to common practices of other attorneys in similar circumstances. It’s important to remember that a lawyer who has made makes mistakes is not necessarily guilty of legal malpractice. If it can be shown that the strategy employed by your lawyer differs greatly from common practice, then you may be dealing with a breach of duty, however a breach of duty does not necessarily constitute legal malpractice unless it resulted in financial harm.
Proving Causation and Financial Loss
One of the more challenging aspects of a legal malpractice case is proving that a lawyer’s actions directly caused you harm. To show this, you must prove that you would have won the case (or the financial terms of the settlement or verdict would have been substantially better for you) if not for the lawyer’s negligence. So, for instance, yif ou would have lost your case no matter what the attorney’s actions, you probably can’t recover damages in a legal malpractice lawsuit.
Here are some of the behaviors often associated with malpractice:
- Failing to meet filing deadline
- Suing outside of the statute of limitations
- Failing to check for conflicts of interest
- Incorrectly applying the law to the client’s situation
As mentioned above, these may not constitute malpractice in themselves, but they are behaviors to be wary of. To learn more about common legal malpractice claims visit the American Bar Association website.
Avoiding Malpractice Before it Happens
In some cases, you may notice an attorney’s poor habits while they are occurring. For instance, you may realize that your attorney is bad at getting back to you. In such cases, it’s important not to jump to legal malpractice. Instead, you may want to send a letter with assertive language outlining your concerns. Sometimes great lawyers are just bad at responding to phone calls and emails. If, after attempting to address the problem, you feel you can’t go any further with this lawyer, you should replace him or her – better that than risk major losses in court.
Additionally, if you notice that your lawyer has stolen from you, you should file a complaint with the disciplinary authority in your state. In many cases, the bar association is that authority.
Ultimately, if you believe you have a legal malpractice case, you should contact an attorney with specific legal malpractice experience who can help guide you through the process. He or she can help you distinguish between mistakes and actual legal malpractice.