What Constitutes Legal Malpractice?
Legal malpractice refers to a situation when an attorney fails to provide the proper standard of care to their client, and this failure ultimately causes a financial loss for the client. This is a legal breach of fiduciary duty, and the consequences can be severe if important details are overlooked in a case. This often leads the victim to seek the help of an attorney who specializes in legal malpractice.
The following is a list of examples that can help you to determine whether you have a case for legal malpractice:
If you ever go to trial with a lawyer and they appear incompetent , or if you experience some other defect in your representation, it is best to speak with a legal malpractice attorney as soon as possible.
It is important to note that just because your case didn’t end up going your way, or the outcome wasn’t what you were expecting, does not mean that your attorney is guilty of legal malpractice. Not everyone who takes legal action will come away with the result they are looking for; no one can be guarnateed victory before the court. It will always be up to the judge and/or jury on how they perceive the facts presented before them.
When to Seek the Counsel of a Legal Malpractice Lawyer
While there are many legal malpractice claims hinging on a particular type of formal, common forms of malpractice, the signs of legal malpractice are usually difficult to detect until you uncover something has gone very wrong. These are general signs, and not all legal malpractice claims exhibit them, but if you think something has gone amiss with a lawyer handling your matter, look for these signs: The Lawyer Fails to Get Things Done In a Matter of Unreasonable Time; Answering a complaint late, waiting months to answer an interrogatory, filing a motion when the statute of limitations has expired, filing a brief long after the deadline and similar types of behavior are so distracting, that they are commonly hallmarks of legal malpractice. If this happens, contact a legal malpractice attorney. A Notice or Other Pleading is Not Responded to, and there is a Default Judgement Afterward; this is an easy proof element for a legal malpractice case, so if you get a notice of default or judgment against you, "that should be your yellow flag." The Lawyer Does Not Respond to Questions in a reasonable Time; if you call and email your attorney and he provides no response, or a very late response, it is time to investigate this attorney. You Have an Upcoming Hearing, and the Lawyer does not Chronicle the Hearings and other events in the Matter Well; if you have hearings every few weeks, and the attorney does not keep running notes about the significance of each hearing and how it fits into the overall case, it is time to question whether there will be legal malpractice. You Find Out Your Lawyer is "Lazy," or Otherwise Does not Act on your Case with Prompt Reasonable Diligence; if you must check on the progress of the case for more than a few hours each month, or if he responds to your questions with something like "I have been busy, and will act on it soon," or "I will get to it, just delay us in a week or so." Then you should run to a legal malpractice lawyer.
Selecting a Legal Malpractice Attorney in Tennessee
When seeking an attorney to handle your legal malpractice case in Tennessee, there are a number of factors that you will want to consider prior to making your decision. In most cases, the goal should be to choose an attorney who has experience and a solid track record within the jurisdiction where the malpractice occurred. Because legal malpractice is such a niche area of the law, some attorneys may not yet have significant experience or knowledge of the subject matter. Therefore, when evaluating your potential candidates for legal representation, it can be helpful to ask them a series of important questions, including: -How many legal malpractice cases have you handled? Of those cases, how many were within the federal or state court system? -Do you have experience specifically representing plaintiffs or defendants, or both? -Is your practice limited to legal malpractice or do you also handle other types of cases? Additionally, you should consider the reputation of the attorney within the community. Some of the following sources can help you gauge the reputation of the attorney: -Search the attorney on the American Bar Association website to see if any disciplinary actions have been filed against them and to find their bar number. -Evaluate the attorney’s client testimonials and reviews on popular referral sites. -Ask colleagues and friends within your network if they have had any familiarity or personal experience with the attorney or their cases. By speaking to your potential attorney and shopping around for the best fit, you can make sure that you are covered and are well-represented.
Overview of Tennessee Malpractice Statutes
Although legal malpractice is a national problem, the rules for prosecuting legal malpractice claims are different in each state. This article provides advice on how to select a legal malpractice attorney, but does not provide any substantive information on the actual rules that apply to law suits in Tennessee.
Unlike most states across the country, Tennessee has adopted a rule which requires that expert testimony be presented in all legal malpractice trials. Tenn. Code Ann. ยง 29-26-115 provides:
"(a) In any action for injuries or wrongful death based on professional, erroneous, or negligent acts or omissions within the course of, or in furtherance of, the prosecution of a client’s cause of action by an attorney at law, expert testimony shall be required to establish the standard of care, the breach of the standard of care, and the fact that the breach was the proximate cause of the loss to the client, provided, however, that expert testimony shall not be required in defense of an action that is brought either to recover a refund of expenses advanced on behalf of a client or to recover actual or implied contractual fees .
(b)(1) This expert testimony provision is not applicable to claims that arise out of work done, or services rendered, in connection with the following:
(A) Negotiation, preparation and closing of contracts, any of which have a value or cost of less than five hundred dollars ($500), exclusive of litigation involved in collection or enforcement of the contract;
(B) Litigation;
(C) Office practice matters and procedures for clients, except those matters and procedures to which subdivision (b)(1)(A) is applicable; or
(D) Criminal matters.
(2) In any action brought to recover a refund of expenses advanced on behalf of a client or to recover actual or implied contractual fees, no expert testimony shall be required to establish the standard of care or the breach of the standard of care. Any person qualified to testify as an expert in accordance with this chapter shall be competent to express expert testimony in any such action."
Stages of a Legal Malpractice Case
Steps in Filing a Legal Malpractice Claim in Tennessee
If you believe you have been damaged by the actions of a negligent attorney, you should begin immediate steps to consult with an experienced attorney. Initially, you must determine if you have a viable claim for legal malpractice. State and federal courts in Tennessee require attorneys to adhere to specific legally recognized standards of professional responsibility. You, as a client, have the right to expect that your attorney will provide competent, diligent, and timely representation. This means that the attorney must communicate with you; must investigate the facts and law; and must file documents on time or meet deadlines in the litigation. Your first step in pursuing a legal malpractice claim against an attorney is to get legal advice from an experienced legal malpractice attorney so that you can make a decision regarding whether you should pursue a claim for legal malpractice.
After you make the initial decision to pursue a legal malpractice claim against your prior attorney and obtain legal representation, the next step in the process of pursuing your claim is to file a legal malpractice case with the court. If you are the plaintiff, you will be required to draft a Complaint and then file it with the court. In Tennessee, a Complaint must be filed in the correct district court to be legally valid. A Complaint must be filed in the appropriate venue in order for that court to have jurisdiction over the parties if the case proceeds to trial.
A Complaint will consist of the following:
After filing your case with the appropriate district court, you must properly serve the defendants with a copy of the Complaint to obtain personal jurisdiction over those defendants. This is done by the clerk of the court. Being placed on notice of the legal malpractice claim is essential, and the defendants must also be given an opportunity to respond (within thirty days to respond to the Complaint or risk being defaulted from participating in the case). Depending on whether the defendants are individuals, corporations, limited liability companies, or governmental entities, the process for providing service on the defendants will vary.
The time that passes between service of the Complaint and the filing of the defendants’ Answer will depend on several factors, such as whether the defendant has retained counsel to represent the defendant and how much discovery is conducted before filing an Answer. Each defendant is allowed by law the opportunity to obtain medical records and certain other information through an initial disclosure document. The case will proceed through litigation with the exchange of factual information and legal arguments between the parties and their attorneys. If the matter is not resolved successfully through the litigation process, the case may proceed to trial and eventually end up before the Court of Appeals or Tennessee Supreme Court.
Possible Results of a Legal Malpractice Case
Legal malpractice is an issue that no litigant wants to face. This occurs when the lawyer you hire does not perform in a manner that is up to the standard of practice, resulting in damages to you. You then have the option of filing a lawsuit against your former lawyer for losses incurred as a result of their mistakes. Settlements to legal malpractice lawsuits can vary, and involve the return of a legal fee for failed representation, or payment of damages based on the losses you incurred. Consider the following possible outcomes of a legal malpractice lawsuit:
Litigation and Settlements: If you choose litigation as your option for resolution, your attorney will file a lawsuit against your former lawyer for malpractice, if you were unable to reach a settlement . The court will then determine the outcome of your case in a civil trial, unless the parties agree to settle before the trial begins.
Compensatory Damages: If you sustained actual damages as a result of your attorney’s errors, you are entitled to compensation for those losses. Compensatory damages are the most common type of legal malpractice award and provided to put you in the position you would be in had the attorney acted competently on your behalf.
Non-Compensatory Damages: These are considered "punitive" damages, and are awarded to you to serve as punishment for your attorney. Generally, such damages are very rare, and only awarded in extreme "bad faith" instances where the attorney intended to cause damage or harm to the client through their actions or inaction.