When people hire an attorney, it’s because they have become embroiled in some legal matter and recognized they’re not equipped to handle the situation without help. A lawyer is supposed to help you achieve a better outcome than that which you could manage on your own, but what happens when the attorney makes matters worse? While some situations are extremely difficult to improve, your attorney should be experienced enough to do some good for you. In cases where you end up in a worse situation, you may have grounds for a legal malpractice suit.
The Challenges of Proving Legal Malpractice
case of medical malpractice occurs when the attorney commits significant errors in the handling of the case, which means you must be able to prove that those errors were made. Simply losing a case isn’t enough to constitute legal malpractice, or the courts would be overrun with lawsuits. In essence, you will have to be able to show that the attorney failed to use the ordinary expertise of a professional legal advocate and that he failed to act in a manner similar to how any other would have acted in similar circumstances.
As is true of any civil lawsuit, a legal malpractice case must be able to establish four primary factors. Without one or more of these essential aspects, a case for legal malpractice cannot be made. These four points are:
- Duty of Care – The care your attorney owed to you as his or her client.
- A Breach of Duty – The attorney breached that duty, either by acting negligently, making significant errors, or failing to live up to his or her obligations in some other way.
- Financial Harm – The plaintiff must prove that the attorney’s actions resulted in financial harm.
- Damages – This requires showing the losses you suffered as a result of the legal malpractice.
In order to win a legal malpractice lawsuit, it’s vital that you can show that you would have won the lawsuit, if it had not been for your attorney’s mistakes. Additionally, you will have to show that, by winning the case, you would have collected damages from that defendant. These factors are essential, because it establishes the loss you suffered and shows how you were financially harmed by the attorney’s errors.
Common Examples of Legal Malpractice
There are certain situations that can lead to an instance of legal malpractice. While some of these situations may not automatically constitute a case of malpractice, if they’re allowed to continue, they may lead to grounds for case of legal malpractice. For instance, if your lawyer seems to have stopped working on your case, you should address those concerns with the attorney. A written letter requesting information about your case can provide evidence that you attempted to contact the attorney about the situation.
Additionally, your lawyer may be found guilty of legal malpractice, if he or she accepts a settlement offer without your consent. The attorney doesn’t have the right to accept an offer on your behalf, so, if this does occur and the settlement is less than the true value of your case, you may have cause to sue the attorney. A legal malpractice suit in this instance may award you damages to make up the difference between the settlement and the actual value of the case.
In some cases, a case may be thrown out simply because the attorney for the plaintiff failed to keep up with deadlines and other obligations connected to the suit. If your attorney’s inactivity causes your case to be thrown out, you may be able to receive damages through a legal malpractice lawsuit. In such an event, you would be able to sue the attorney for the damages you would have received through the original lawsuit.
Another type of legal malpractice occurs when the attorney uses client fees for things other than for the handling of that client’s case. As with many types of legal malpractice cases, this can be difficult to prove. However, if you can show that the attorney misused the funds, you may be eligible for a settlement equivalent to the damages you would likely have received in the original case.
While instances of legal malpractice are rare, they do occur. To avoid becoming involved in this type of situation, it’s important to shop around for an experienced and professional attorney. Consulting client reviews and questioning the attorney during your initial consultation can help you to make an informed decision. You’re already involved in a complex and frustrating legal situation, so it’s wise not to compound the problem by hiring the wrong lawyer.
Need help? Call Fenster & Cohen today at 954-473-1500