As tort lawyers, we deal with issues of negligence on a daily basis. We represent individuals who have been seriously injured, or the families of victims who were killed as a result of someone else’s negligence or wrongdoing, making civil claims against liable parties of all types, including professionals who fail to meet the applicable standard of care for their trade or profession. At the Halperin Law Center, our practice includes claims against attorneys for legal malpractice.
DEFINING LEGAL MALPRACTICE
Legal malpractice is defined as “negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order for the attorney’s actions or failures to rise to the level of negligence necessary for a viable claim, the plaintiff needs to demonstrate that the attorney’s actions or failures were more than simply poor legal strategy. A plaintiff must show that the lawyer’s acts resulted from errors that no reasonable attorney would make. Their attorney must have failed to use the ordinary care and skill that other “reasonably prudent” lawyers would use in a similar case or similar circumstances. The testimony of expert witnesses is generally used to determine what other reasonably prudent lawyers would have done.
HOW DO I KNOW IF I HAVE A CLAIM?
If you had a viable legal claim and your attorney made major mistakes, you may consider making a claim against that attorney for legal malpractice. Although it may seem cut and dry, it can be difficult to obtain a successful result in a legal malpractice case. The fact that you lost a case or did not receive the result you had hoped for or had anticipated does not necessarily mean that an attorney committed legal malpractice. An attorney who has experience with the nuances of these cases can assist in you determining whether or not you have a valid and viable claim against your former attorney for legal malpractice.
Generally speaking, a potentially successful legal malpractice claim meets four elements:
- Duty: the attorney in question owed you a duty to act properly;
- Breach: the attorney breached that duty (that is, he or she was negligent, made a mistake, or failed to do what he or she agreed to do);
- Causation: the attorney’s conduct or failures caused you to suffer damages; and
- Damages: you suffered financial losses as a result of the attorney’s actions or inactions.
SECURING A VICTORY
In essence, in order to win a legal malpractice case, you have to prove that the attorney made mistakes in how they handled your case, that you would have won that case if the attorney had not made those errors, and that if you had won that case, you would have been able to successfully collect any settlement or award from the defendant in the original case.
Again, the fact that you lost your case, in and of itself, does not constitute legal malpractice. Often, a client is dissatisfied with their representation or result, yet no malpractice was committed.
Some of the issues that do not rise to the level of actionable malpractice include:
- rude behavior by an attorney
- feeling that your attorney’s fee was too high
- Your attorney recommends a settlement that is less than what you originally anticipated
- You wish your attorney had been a bit more aggressive with opposing counsel
WHAT ELEMENTS CONSTITUTE LEGAL MALPRACTICE?
So, what does constitute legal malpractice? At what point do your attorney’s actions or failures to act rise to that “actionable malpractice” level? As Prince Hamlet once said, “Aye, there’s the rub.” Making this determination is one of the issues for which you will need an experienced legal malpractice attorney.
Here are the top ten most common types of legal malpractice claims in the United States:
- Failure to know and/or apply the law
- Planning errors
- Inadequate discovery and/or investigation
- Failure to file documents
- Failing to calendar deadlines or hearings
- Failing to know deadlines
- Failing to obtain client consent
- Conflict of interest
Other actions that may be valid grounds for a legal malpractice case include failing to file a lawsuit to preserve the statute of limitations (the time you have to file your case, by law) in a case, disclosure of confidential information, mishandling of client funds, failing to follow client instructions, errors in mathematical calculations or improperly withdrawing from a case.
NAVIGATING THIS COMPLEX PROCESS
Due to the complicated nature of the US legal system, as well as the subjective nature of malpractice cases, having an experienced and knowledgeable legal malpractice attorney on your side is critical. If you seriously believe that you have been a victim of legal malpractice, you should act quickly to ensure that your case is handled properly. You should obtain a copy of your file (you are entitled to most of it under Virginia law) and seek another attorney if needed.
A proven track record of success in negotiating settlements and winning verdicts for our clients.