Considerations in a Legal Malpractice Case
Provided by HG.org
We all understand that when someone wrongs us, we can contact an attorney to obtain assistance in filing a lawsuit to obtain relief. But what do you do when your attorney is the one who has wronged you? How do you obtain relief when your attorney drops the ball and commits malpractice?
When a plaintiff brings an action against a lawyer for legal malpractice, the plaintiff must prove several basic elements of the cause of action for legal malpractice in order to prevail. Obviously the first is that the plaintiff was a client of the malpracticing attorney. Additionally, a plaintiff in a legal malpractice case must prove that:
a) the defendant-attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession;
b) the defendant-attorney’s negligence was a proximate cause of the loss sustained by the plaintiff-client;
c) the plaintiff-client incurred actual damages as a result of the defendant-attorney’s actions or inaction; and
d) “but for” the defendant-attorney’s negligence, the plaintiff-client would have prevailed in the underlying action or would not have sustained any damages.
These types of cases present an unusual problem. Unlike malpractice claims in other professions, legal malpractice claims often require a plaintiff to “win” two cases. They must show that their original case or other legal matter (the one which the attorney failed to win or that resulted in harm to the plaintiff) would have gone the other way and the plaintiff would have prevailed or come out ahead in some other way but for the attorney's missteps. The plaintiff then must also prevail in the case against the attorney. If the plaintiff fails to “win” either case, they are both lost.
On the other hand, if a plaintiff is successful, recovery is often possible from attorneys because most carry malpractice insurance. As a result, attorney malpractice cases are on the rise as more and more disgruntled clients begin to hold their attorneys responsible for losses in marginally winnable cases. Many malpractice carriers will pay settlements prior to trial simply to dispose of the case as cheaply as possible. This has led to rising malpractice insurance premiums, particularly in high risk areas, such as foreclosures and personal injury.
If you have been injured by the errors or omissions of your attorney, you should contact another attorney that specializes in legal malpractice claims. On the other hand, if you are an attorney facing a malpractice claim, you should immediately contact your insurance provider. If you do not have malpractice insurance, you should contact an attorney experienced in defending against malpractice claims.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
a) the defendant-attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession;
b) the defendant-attorney’s negligence was a proximate cause of the loss sustained by the plaintiff-client;
c) the plaintiff-client incurred actual damages as a result of the defendant-attorney’s actions or inaction; and
d) “but for” the defendant-attorney’s negligence, the plaintiff-client would have prevailed in the underlying action or would not have sustained any damages.
These types of cases present an unusual problem. Unlike malpractice claims in other professions, legal malpractice claims often require a plaintiff to “win” two cases. They must show that their original case or other legal matter (the one which the attorney failed to win or that resulted in harm to the plaintiff) would have gone the other way and the plaintiff would have prevailed or come out ahead in some other way but for the attorney's missteps. The plaintiff then must also prevail in the case against the attorney. If the plaintiff fails to “win” either case, they are both lost.
On the other hand, if a plaintiff is successful, recovery is often possible from attorneys because most carry malpractice insurance. As a result, attorney malpractice cases are on the rise as more and more disgruntled clients begin to hold their attorneys responsible for losses in marginally winnable cases. Many malpractice carriers will pay settlements prior to trial simply to dispose of the case as cheaply as possible. This has led to rising malpractice insurance premiums, particularly in high risk areas, such as foreclosures and personal injury.
If you have been injured by the errors or omissions of your attorney, you should contact another attorney that specializes in legal malpractice claims. On the other hand, if you are an attorney facing a malpractice claim, you should immediately contact your insurance provider. If you do not have malpractice insurance, you should contact an attorney experienced in defending against malpractice claims.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
