Malpractice Attorney: Attorney malpractice is the failure on the part of a attorney to use the knowledge, skill, and ability ordinarily possessed and exercised by attorneys, resulting in an actual loss to a client. It may arise out of the attorney-client relationship, or it may be based on a contract theory of liability derived from the attorney-client agreement. You can sue your attorney for damages resulting from malpractice, and you may recover a monetary amount equal to the harm that you have suffered from it.
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You cannot, however, sue your attorney for a failure to meet ethical standards. A separate procedure exists to address ethical concerns, and it does not result in the recovery of your loss. Rather, the grievance process is designed to protect society by imposing sanctions that can include revocation of your attorney's license to practice law. Legal malpractice and an ethical violation may exist under the same set of circumstances, but you should understand the difference and know that the remedies available to you are distinct for each.
Hiring a Malpractice Attorney
If you believe that some action or inaction on the part of your attorney has caused you to lose your case or has diminished the amount of your recovery, you may decide to sue your attorney for legal malpractice. Such a decision will require you to find a attorney to handle your malpractice lawsuit, and you should go through the same six-step process laid out in Chapter 1 that you used to select your first attorney.
You may discover, however, that attorneys are hesitant to take cases against other attorneys. This reluctance to sue a colleague persists for a variety of reasons. Perhaps strongest among them is an awareness that a client who is willing to sue a former attorney for legal malpractice obviously would be willing to sue a new one, too. Or perhaps the new attorney finds a bit imposing the idea of suing someone who understands the workings of the law and knows how to supervise a tough defense. Most attorneys, though, simply do not want a reputation in the legal community for capitalizing on the misfortunes of their colleagues. For whatever reason, it may be difficult to find a attorney who will take your legal malpractice case, even if it is meritorious.
If no attorneys in your locality profess to handle legal malpractice matters, take a look at attorneys who have experience in the medical malpractice area. Medical malpractice attorneys are acquainted with the performance standards required of professionals and the proof required to make a case against one. With a little luck, one of them will be willing to adapt that knowledge to your legal malpractice situation.
Yet another approach is to search in a neighboring county for a attorney willing to take your case. A attorney who does not want a reputation at home for feeding on colleagues' mistakes may welcome the opportunity to take a good case in another locality.
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An additional challenge inherent in legal malpractice cases is finding attorneys to testify as expert witnesses. Attorneys are sometimes reluctant to testify against one another, so your new attorney many find it difficult to convince a credible attorney to appear as an expert on your behalf. If your attorney perseveres, however, and
your case has merit, eventually another attorney will agree to give the necessary testimony.
You should be aware that there is a statute of limitations' on any possible malpractice claim that you may have against your attorney. That statutory period begins with the commission or omission of the act alleged to be malpractice or when you first discover it, whichever comes later. Thus, it would be possible for the time to run out on your malpractice claim while your underlying lawsuit is still pending, if the case takes a long time and you knew about the attorney's error.
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Suing your attorney can be a formidable task. Legal malpractice matters are complicated, and the defendant (your former attorney) is familiar with the legal system. If you are thinking about representing yourself' in a malpractice case against your attorney, forget it. If you do, you will almost certainly lose. Your attorney knows the ropes and is likely to have the sympathies of the judge, clerks, secretaries, bailiff, and nearly everyone else in the courthouse. Representing yourself would put you at an extreme disadvantage even if you have an exceptionally strong claim.
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Proving Your Malpractice Case
Malpractice law is based on precedents established in court decisions rather than on statutes, and it varies according to fluctuating attitudes about the level of responsibility that the community believes professionals should have. Your malpractice attorney must look to these decisions for the causes of action that are available in your state. The two most common causes of action brought by clients against their attorneys are breach of contract and negligence. Of course, other legal theories may be used separately or in combination with these, such as fraud and theft.
To prove breach of contract you must show -
- that an attorney-client relationship existed;
- that the relationship was defined by a written or oral contract between you and your attorney;
- that your attorney breached one or more of the provisions of the contract;
- that the breach caused you injury; and
- that your loss can be measured in money. To prove negligence you must show
1) that an attorney-client relationship existed;
- that your attorney owed you a duty of ordinary care in the handling of your legal matter;
- that your attorney failed to act as a attorney of ordinary skill, knowledge, and diligence should have;
- that the failure (negligence) caused your damages; and
- that you suffered an actual loss or damages, usually measured in money.
Proving legal malpractice under a negligence theory is complicated because you have to show that your former attorney was negligent and that you would have won the underlying case in the absence of that negligence.
An example of negligence would be if your attorney missed the deadline for filing your lawsuit. A bad decision by your attorney at trial regarding whether or not to call a witness or ask a specific question, however, would not necessarily constitute negligence. Trial attorneys make lots of decisions in the heat of battle that seem to have been poor ones. Examined in light of the information that was available at the time it was made, though, the decision may appear reasonable.
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A attorney I know once represented the defendant against a plaintiff who was suing for injuries as a result of an automobile accident. The plaintiff was demanding a lot of money for the injury she had suffered, and he suspected that was not being candid about the extent of her pain and suffering.
The first day of her testimony, the attorney asked her several times if she had any diseases or illnesses, and she said that she did not. That evening, the attorney's investigator obtained a medical record that showed she had syphilis, and the attorney debated the wisdom of offering the record into evidence. Her testimony had not gone well for him, so he decided to introduce the document, not for the purpose of showing that she had syphilis (he didn't care about that), but rather to show that she had lied under oath. His hope was to discredit her statements regarding the extent of her pain and suffering. He knew the move was a risky one, but he opted to make it anyway.
Well, when he handed her the medical record and asked her about it, the woman began to cry, and when she could finally talk she sobbed that she had congenital syphilis and that she had been too ashamed to mention it before. Was the attorney ever sorry he asked that question! He looked like an ogre for bringing up something that the woman could not help and that was not relevant to any issue in the case other than that of her credibility. He succeeded in making the point that she had lied under oath, but the question backfired on him. He had taken one step forward and two steps backward.
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His decision to introduce the medical record turned out to be one that he regretted making, but it was not malpractice; it was simply one of many tough decisions to take calculated risks that are made during trial. He made a tactical move that actually strengthened the plaintiff's case. In the end, the jury awarded the plaintiff a goodly sum, although still less than the amount that had been offered before trial, but one cannot help wondering what the outcome might have been had that medical record not been introduced into evidence.
Legal malpractice involves monetary damages and is distinct from an ethical violation, which does not. An action or inaction by your attorney may give rise to a legal malpractice claim, grievance and for violating the rules of professional conduct, or both, she did not imply the other. The filing of a malpractice claim will not get your attorney disbarred. The filing of a grievance for an ethical violation will not preserve your right to file a lawsuit for legal malpractice. If you become involved in the grievance process, you may want to have a different attorney examine the malpractice possibilities so that you do not inadvertently allow the time limit on a potential malpractice action to expire. |
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