Thoughts on Legal Malpractice Cases

 legal malpractice case lies when an attorney while representing a client deviates from the standard of care. That set of words mean: Did your lawyer negligently handle your legal matter, case, or claim?

There are a few elements that must be proven in a legal malpractice case. The first is that there is an attorney-client relationship. This does not necessarily require a contract. A legal malpractice claim may be brought in some instances where there is no contract, but where the lawyer was simply providing advice. After establishing an attorney-client relationship, which sets forth a duty, we then must show that the lawyer deviated from the standard of care, or negligently performed that service. The third element is damage. It is not adequate to just simply show that there was negligence, you have to show that the negligence or deviation from the standard of care actually caused you damage.

Sometimes this is called proving a case within a case. Let me give you an example; if you are driving and you have a green traffic light and another driver coming from your right side goes through the red traffic light and does not hit you and you make it through the intersection, the other driver was negligent, but he did not cause you any damage. In a legal malpractice case, it is just as important to be able to show that there are damages caused by the legal malpractice as it is to show that there was an actual deviation from the standard of care.

Without damages, there is no case. That usually requires that you show that but for your lawyer’s negligence, you either would have won the underlying claim or that you suffered damage that cannot be cured.

Sometimes during the course of handling a case, a lawyer makes an error, but he is able to correct the error before it causes you any damage. If you determine a lawyer has made an error and you discharge that lawyer, often you are required to finish or conclude the legal matter in order to show that there is damage. In other words, if you hire a second lawyer and that lawyer is able to rectify the mistake that was previously made and it causes you no damage, you may not have a claim that you can pursue against the first lawyer. If, however, that error cannot be corrected and it causes you damage, then you have the two elements which may allow you to bring a legal malpractice claim.

There are three important dates to consider in bringing such a claim. The first is, you have one year to bring this claim from the latest of three dates. The first is the date of negligence. The second is the date a reasonable person should have investigated whether malpractice occurred, and the third is one year from the date that the negligent lawyer last represented you.

You cannot guess at these dates. You need to seek legal counsel immediately upon learning of the negligence and have a professional assist you in determining what these dates are. There is no way you can predict that.

Legal malpractice cases are very expensive to pursue. The first reason for that is that you need to have an expert in the same area as the negligent lawyer who will testify and after reviewing all the information in your previous case that you are complaining of, not only deviated from the standard of care meaning was negligent, but that the lawyer’s negligence caused you damage. Those expert lawyers charge an hourly fee to act as an expert and they are in addition to the lawyer that you hire that handles the actual legal malpractice claim. The result is that our firm is often not able to handle a legal malpractice case unless the damages that were caused by the negligence exceed $100,000. That is true because you, as the client, need to have the legal expert retained and able to testify as to your former lawyer’s negligence and the damages you sustained from his negligence, and to have us as your lawyer represent you in the malpractice claim. These are highly contested cases or claims. They are rarely settled without filing suit and hence, the cost to pursue them is significant and the defense is always very vigorous to defend your former attorney’s conduct.

While our firm’s expertise and mine over the last 31 years is in handling legal malpractice cases, I have handled those malpractice cases in many areas other than my own specialty. Over the course of my years, outside of legal malpractice, I have handled many negligence claims, product liability claims (which are claims for defective products), aviation claims for both defective aircraft and negligence in flying that aircraft, admiralty cases that involve the specific are of the law that involves claims involving vessels. I have handled many claims involving insurance including uninsured motorist and what they call bad faith litigation when an insurance company does not treat its insured or does not treat a defendant correctly and make an offer to my client who then exposes that defendant to a judgment that is in excess of their insurance coverage. That is called third-party bad faith. Our firm had the original verdict in the State of Ohio of over seven figures for an insurance bad faith claim that occurred in a third-party situation where we took over the bad faith claim, a defendant who injured our client had against his own insurance carrier when the verdict greatly exceeded his insurance policy. I have also handled safe place to work claims, VSSR claims, accounting and other professional malpractice. I have handled legal malpractice cases in all of those fields were I am very conversant and understand the underlying law and have an ability myself to determine whether there is a deviation and damages even before I obtain an expert. However, in addition to that, I have successfully handled very significant legal malpractice cases that took place in areas that I had not been exposed to before. For example, an investor Ponzi scam resulted in our client retaining an attorney to handle the claim against the investment houses. Although I had not had previous experience in that, I learned the entire area of the law, worked with an expert, and was successful in bringing the legal malpractice claim against that attorney and actually in discovering what had previously not been determined and was not determined even by our own expert until I saw it, that the negligent attorney entered into an arbitration proceeding which by definition for every attorney in the country who entered it, prejudiced their client because the standard of review in the arbitration was far greater and harder than the law required it to be. That area was: an arbitration procedure defined our client had to show reasonable reliance. The standard or burden should have been actual reliance which is a far easier standard to prove.

In addition, I have handled very significant legal malpractice actions that occurred between international companies that involved trade secrets and tortious interference with contract, also two areas that I had not been involved in previously. Through the use of excellent experts and our firm’s own research was able to determine the law in that area and successfully pursue that claim. I have handled a number of domestic relations claims that involve malpractice, even though I do not handle domestic relations claims as experts taught me the various areas over the years and even if I cannot identify the areas, there are experts that can.

The handling of a legal malpractice claim is particularly sensitive. You are always dealing with a client who believes he has been wronged by a lawyer before. That requires gaining the trust of clients and individuals whose trust has been betrayed. To handle those claims requires significant time and investment and it is incumbent on our firm to gain the trust of our new client, whose trust has not been well placed before.

On occasion, the malpractice by the attorneys has actually been above and beyond malpractice and is arguably intentional misconduct. Although these are few and far between, they can occur when an attorney takes complete advantage of a client. In those situations with intentional conduct, the attorney’s malpractice insurance does not cover those losses that are as a result of his intent, nor any punitive damages that are as a result. It is very important to handle those cases carefully and to have the client understand what the affect of losing insurance coverage is and whether it is a better idea to pursue those in a negligent arena even when they are arguably intentional acts in order to ensure the client receives a judgment that can actually be recovered versus a judgment against a lawyer who ultimately becomes uncollectible.

I have had situations where I have handled where there is fraud or forgery of documents. We have had to review the documents to determine whether or not there was intentional misconduct in the alteration or change of those documents. In essence, the key to any claim and the key to a legal malpractice claim is exceptional preparation, gaining the trust and confidence of the client, and explaining to the client immediately upon speaking to the client what the chance of success or failure is after the documents are reviewed and in some instances depending on what the client advises giving the client advice as to whether to proceed or not.

When an attorney makes a mistake, they are duty-bound if they know that mistake to disclose it to their client. Many attorneys follow that principle. A very, very small minority in my experience hide that.

The client always has a right to their original file. To get your original file, you only need to write your former lawyer and request it. When you are requesting your original file, you should write to the lawyer and give the lawyer 4 or 5 days and a date certain that you will pick up your file so they have a chance to copy it. Do not accept the copy of your file, only accept the original. Oftentimes you will need assistance in getting your original file as some attorneys do not understand their requirement to provide the original file.

The key to a legal malpractice case is if you believe that your lawyer has deviated from the standard of care, you need to seek counsel relating to that immediately to determine what steps you need to take. Oftentimes clients contact me after they have been forced into a settlement and during the course of the case and/or settlement proceedings, they are very unhappy, but they do not seek other counsel, and they enter into the settlement or resolution thinking they have no choice and then try to bring a claim thereafter. Once you have concluded the underlying case, it can be far harder to bring the legal malpractice claim once you have indicated that you have accepted the resolution. The key is: if you do not like what is going on, first get an explanation from your lawyer that is handling your claim. If you do not accept that explanation or that lawyer refuses to give you a reasonable explanation, then endeavor to obtain another legal opinion from another lawyer before you resolve the underlying claim. To do so, you have to discharge in writing your initial attorney, except if you are just simply obtaining an opinion as to whether there is a deviation from the standard of care in which case you can call us without discharging your lawyer.

Do you have questions regarding a potential legal malpractice claim?