Legal Malpractice 101
Legal malpractice is defined as negligence – the failure of an attorney to use reasonable care. Any breach of that duty which causes damage to the client, or a third party, shall be actionable. Usually, the client will sue the attorney for losses sustained during the primary action and the defendant attorney will forward that claim to the insurance company, who will either file a declaratory judgment action to deny the claim, or they will attempt to settle the matter. At this point, it is best to have an attorney experienced in litigating against legal malpractice insurance companies, so a crafty settlement is not rejected and you end up with more than what the primary carrier is willing to pay. The essential elements of proof in a legal malpractice case are: that an attorney-client relationship existed (as opposed to the party being retained by another attorney); the act of the attorney represented negligence, such as a missed statute of limitations; that the negligence was the proximate cause of loss; and, that in fact, the plaintiff suffered damages. What is legal malpractice? "The tort of negligence is a failure to conform to the standard of care applicable to the actor’s conduct. It is composed of two fundamental elements, breach of a duty to conform to a standard of care and resultant damages. To be liable, the actor must owe the complaining party a duty to conform to a particular standard of care, the actor must fail to meet that standard, and the complaining party must have suffered injury as a result of the breach." In other words, the attorney would owe the duty of care to the client to conform to the standard of care . For example, an attorney receives a notice to appear and a summons for a criminal case. Instead of appearing in court on that date, the attorney fails to appear and the client’s case gets dismissed. Therefore, it is easy to see how ignoring the notice to appear could have caused damage to the client. The failure to meet the standard of care caused the dismissal of the case, which meant loss of a potential win in the criminal action. So, the basis of proving legal malpractice is to establish that there was an attorney-client relationship, that the attorney failed to meet the standard of due care by failing to appear on the notice to appear, that the damages were that the client won the underlying legal action but was dismissed as a result of attorney failure to appear, and that there were damages. Legal malpractice can often be proven with limited discovery. Unfortunately, most clients go to the attorney they want, irrespective of his or her experience in the area of the law. The owner of a business should not use a family law attorney to properly incorporate an LLC. Getting the articles of incorporation filed in a timely manner is just as important as the proper style of care. Legal malpractice happens when an attorney misses certain filing deadlines and/or makes serious errors in preparing legal pleadings. Often, an experienced attorney will be able to explain to the client the pitfalls of going to the wrong legal counsel, and how doing so will result in some type of damages to the client. Having an experienced attorney handle this issue for you will also ensure that your legal malpractice claim will not be dismissed on an early motion for summary judgment.
Necessary Elements to Prove Legal Malpractice
Proving legal malpractice can be difficult but it is possible. The general elements which must be proven in a legal malpractice case are: Duty, Breach, Causation and Damages. There are some distinctions about how these elements apply to New York legal malpractice cases and Florida legal malpractice cases. In the Florida legal malpractice case of Judge v. Spector Cohen Camner Linder & Ashbaugh (3D03-2886 06/09/2004) the court wrote: the elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship, (2) a negligent act or omission by the attorney giving rise to the client’s damages, and (3) damages resulting from the attorney’s breach of the standard of care. See, e.g., Estate of Shockley v. Sensibar, 740 So.2d 574, 577 (Fla. 5th DCA 1999) (stating that elements of legal malpractice are (1) the existence of an attorney-client relationship, (2) a negligent act or omission by the attorney giving rise to the client’s damages, and (3) damages resulting from the attorney’s breach of the standard of care); Paduano v. R. Riveter & Co., 696 So.2d 825, 829 (Fla. 5th DCA 1997) (holding that "[t]he five elements of legal malpractice are the existence of an attorney-client relationship, negligence by the attorney in the representation, a loss by the plaintiff, causation and damages. See also Hertz v. Diaz, 889 So.2d 1114, 1116 (Fla. 3d DCA 2004) See also Hertz v. Diaz, 889 So.2d 1114, 1116 (Fla. 3d DCA 2004) (reversing an order of involuntary dismissal because plaintiff-client alleged the essential elements of a legal malpractice cause of action). The author visited with several other attorneys who practice frequently in the area of Legal Malpractice in both Florida and New York. As a result of the discussions we all concluded that while there are some differences between the states, for the most part the essential elements are: Duty to exercise skill and knowledge on behalf of the client (opportunity to affect the outcome of the client’s legal affairs), Breach of that Duty (negligence) and Causation (inability to collect the underlying case). Damages are always easy to articulate, but the others must be proven.
How to Build Your Case and Gather Information
A legal malpractice case, whether against a corporate law firm or an individual attorney is not proven lightly. Even if one of the defendants has a disciplinary history, and even if the defendant has a spectacular failure, a case is still difficult to prosecute. Plaintiff should prove on a "More likely than not level" at least 5 factors:
- Legal Negligence – Breach of Duty by the attorney that was the proximate cause of an actual loss to the client. Here, the prevailing law firm would testify as to the breach of duty.
- Causation that the negligence caused the ultimate damages.
- The damages are not consequential, but direct losses that are tangible and measurable.
- The client/plaintiff must prove the quantum of damages, which are usually economic.
- The attorney must have had the ability to protect the interest of the plaintiff. This is a very important factor, and one that is very necessary to the success of this type of case.
So, how does a plaintiff put together their case? Here are some of the possible ways:
a) Clerks stamps, action sheets, affidavits, and time records.
b) For the attorney’s negligence, if it occurred in front of a judge, the transcript would show the non action taken by the attorney.
c) Other attorneys can be retained as experts, friends, other law firms.
d) An expert who will perform the legal work with expert testimony as to the standard of care, breach, and timing together with a proximate cause.
e) Letter correspondence showing the failure to act.
f) Showing causation through time lines, records, affidavits, testimony, general knowledge and facts.
g) A letter from other lawyers as to the prior law firm’s negligence
h) Affirmation or Affidavit from the lawyers as to the standard of care, breach of continuing representation, and a basis for calculation of damage.
Challenges in Proving Legal Malpractice
Proving legal malpractice may seem straightforward at first, but a number of factors can complicate your case. For instance, the standard of care you must prove for negligence is higher for certain areas of law, such as criminal law. This is because an attorney must meet a higher standard of care when defending a client against a crime than when representing a client in a client against another party. If your lawyer was discharged or withdrew from the representation, obtaining evidence of misconduct may also be more difficult.
New York legal malpractice cases almost always require an expert witness to establish the standard of care. This is not the case, however, if the lawsuit is over a lower standard of care, such as a simple retainer agreement. You can simply prove that the attorney was hired and terminated for a specific breach of the retainer. Courts have the discretion to order post-dismissal pleadings to give you more time to gather evidence.
Another tough hurdle in pursuing a legal malpractice case is proving causation – that the plaintiff suffered some harm. Damages must be proven to be the direct result of the attorney’s negligence, and the courts will dismiss some legal malpractice cases because damages are too speculative or minimal. The greater the amount of money that is at stake, the more reason you have for trying to recover your damages. A common factor in legal malpractice cases is proving where the case would have gone had your attorney conducted himself or herself properly. You must show how the results would differ in what you believe is a typical case.
Finally, quantifying damages in a legal malpractice case isn’t always easy. Some methodologies – such as a settlement value assessment – are ideal for this process.
Seeking Counsel from Legal Malpractice Professionals
When contemplating a legal malpractice case, it is essential to consult with experienced legal malpractice attorneys who can evaluate the merits of your claim, determine if a case exists, and develop a winning strategy. Legal malpractice can be a complicated area of law that may be difficult for laypeople to understand. A legal malpractice attorney will be able to explain the law in a way that is easy to comprehend and provide you with an honest opinion regarding your case. In many cases, an attorney or law firm may involve a "litigation consultant , " or retaining a third-party to work on the case. A litigation consultant can be an objective advisor or even an expert utilized to answer technical questions or provide written opinions. Regardless of the situation, a legal malpractice attorney may need to utilize these experts in order to successfully prove their case. If you have been the victim of a legal malpractice attorney, it is best to seek legal assistance as soon as possible. Even if you are not sure whether or not you have a claim, consulting with a legal malpractice attorney will allow you to make an informed decision regarding your case.
Time Frame for Filing a Legal Malpractice Claim
There is a set time in which a litigator can wait to bring his case to the court. Statutes of limitations are expiring periods during which an injured party must file a lawsuit following an event that created damages. Courts have ruled that if a litigant, after the event or grievance, fails to bring a case to court by this deadline, then the court will refuse to hear the case and the lawsuit cannot be recovered. The timeline for a statute of limitation is generally three years in New York but can vary depending on which state the legal malpractice took place. As such, it is imperative that claimants act within the set deadlines to file a case and recover from damages.
What to Do if You Think You’re a Victim of Malpractice
Below I illustrate some of the steps you must undertake to pursue a legal malpractice case. Make no mistake about it, these cases are complicated and expensive – as opposed to some other kinds of personal injury/work injury cases which are simpler and can be taken on a contingent basis. For these cases, you will need a retainer. As part of the retainer, we will expect you to do some work, because a large part of these cases require a tremendous amount of work on your part.
You should start with a good diary-sized notebook with a pen and line paper. On every day that you suspect the need to learn more about the case, write down the date and the facts that cause you to question the adequacy of your former lawyer’s performance. Next to this will come a list of questions – lots of them (maybe 150 or 300 or 500). These will be the basis of your meeting with the next lawyer . In the meeting, you will state in simple English, the facts of the case and the errors made by your former lawyer. If his/her error is certain, you will have to hire another lawyer with the ability and knowledge to correct the damage. Be sure to speak to the new lawyer about what he/she thinks is required for proof of damages – evidence, judges conduct, mistakes, testimony – whatever. It is analogous to the symptoms of a disease which requires treatment, but no one is quite sure about the treatment. Retain the lawyer and watch as he/she goes into action. Let the lawyer set out in writing the necessary tasks, deadlines and costs. Keep just the right distance but be helpful. Be sure to document everything – all your dealings with the lawyer and research (which must be done). Don’t forget that you may need financial help.