What is Legal Malpractice?
Legal malpractice, as it is defined in the broadest terms, is when an attorney fails to competently represent a client, and the client suffers financially as a result. The legal definition is as follows, "Attorney malpractice is the failure of an attorney or law firm to competently represent a client in a legal matter . Such a failure by an attorney can include; failing to file legal documents by a set deadline, missing court dates or failing to appear in court on the client’s behalf, failing to file suit before the statute of limitations expires, or failure to competently and adequately prepare a case for trial." In short, it is establishing that the court process has been denied through attorney error.
How do you know if you have a case
Your law suit against your attorney is an action for legal malpractice. Like every other action, you must establish the four (4) elements. First, the lawyer must have had a duty to protect your interest, next, he must have breached that duty, third, you must prove causation, and finally, you have to prove damages.
The reason to obtain an attorney for a claim is to obtain his experience and acumen. If you are not protected as a client by the degree of skill that you paid for, then the attorney has breached his duty. In order to establish that there is an issue to try, it must be shown that the attorney lacked the degree of knowledge expected of a person in his position. If it turns out that the attorney’s performance is just as good as that of an attorney with your qualifications and facts at hand, then there is no legal malpractice.
How to gather Evidence/Proof
The potential for legal malpractice or other breaches of conduct by an attorney is high. That’s one of the reasons why attorneys are so frequently reported to state bar associations or the equivalent in the United States and around the world. Not to mention, countless attorneys have even risked their own legal standing by getting involved in fraudulent schemes. In fact, attorney fraud is one of the most common types of fraud on Wall Street.
After it is determined that you have sufficient grounds to file a legal malpractice case, or if you suspect misrepresentation or outright theft by your advisor, begin gathering evidence for your claim. That means collecting documentation, correspondence, and anything else that can be used to prove a legal malpractice case.
evidence you may want to collect includes:
• Evidence that the attorney was hired in a business capacity (such as with business returns and other paperwork) so that you can show that the legal advisor was not acting on behalf of an insurance firm.
• Evidence of the damages you suffered as the result of your trust or estate attorney’s breach of conduct.
• Records showing communication between you and your attorney to prove the extent of communication between the two of you.
• Signed letters between you and your attorney, either about services provided or any contractual obligations (these may be created and signed when you hire an attorney).
How to Pick the Right Lawyer
Choosing an attorney at the outset of any suit, is often the most difficult step to take. The criteria for hiring a legal malpractice attorney must include experience in litigating legal malpractice matters. Choose a lawyer who has written articles or taught CLE courses on legal malpractice and chooses to specialize in legal malpractice. An attorney who lacks experience or exposure in the legal malpractice field may not even know that the statute of limitations on your case is different from the regular 3 year statute. Or worse, they may get it wrong! Do not take the chance, go with the expert. Legal malpractice is far too tricky, and difficult to service, costing too much and requiring too complex an analysis, to choose anyone less experienced than well known legal malpractice attorney.
Initiating the Lawsuit
Before you send your attorney a certified letter, you must first determine if you have a case against that lawyer for legal malpractice. You must study every single document involved in the transaction from which the malpractice claim stems, and be aware of the decisions made by judges and referees who considered the issue, if any. You must consider whether the lawyer is protected (but not free from suit) under CPLR 1206, which allows one party in certain cases to dismiss a second party when they prove "non-participation before trial." Legal malpractice lawsuits are governed by a three-year statute of limitations pursuant to CPLR 214(6). Many courts require filing a Request for Judicial Intervention (RJI). The RJI requires a motion fee and all attorneys’ contact information. Most of the time, the first person who gets served a complaint is a named partner in your former attorney’s law firm. If you are suing more than one person, it’s a good idea to also name them individually, but it’s not mandatory. The papers you need to serve on the person you are suing are known as the process . Once you’ve gotten the process together, you must file it at a courthouse, and pay the fees for filing (and motion, if necessary), so that the court’s clerk can put your papers onto the computerized case list, called a roll. Copies of all papers then must go back to the courthouse, a process known as "filing" or "service." When you receive an "unfiled" case number, you must do some hand filing, such as placing copies of all affidavits, notice of motions or orders to show cause, and all exhibits, in three-ring binders, which will be assigned their own case number(s) on the cover page and more officially referred to by that separate number. When your motion for default judgment is granted, a judgment will be entered against the person you sued, who will then have 30 days to ask a judge to reconsider. If reconsideration is denied or default judgment is already entered against you, then you must wrap it all up with a six-page appeal to a panel of five judges. After you file, the clerk will notify you that the case is now assigned to a particular judge and court, and that notice will include a "scheduling order" which lets you know which judge has been assigned to your case, when the filing deadline is, and where your case will be heard.
Navigating the Litigation
When you have decided to go ahead and sue your attorney, there are a few ways the case can be handled. Many times the attorney admits to the wrongdoing and you can reach a settlement. Or, it is possible the opposing counsel wants to win so badly they may not want to settle without a trial. The cases in this area are normally not plead as class actions. It is much more likely that they are lawsuits on account of legal malpractice saying that the lawyer did not do something they were supposed to do. When you prepare for the case, it is very important the you write down any and all communications you had with your attorney at the time and any unusual things you remember about your attorney representing you at that time. For instance, if you can remember any promises that your attorney made to you that he or she did not keep, make sure you note them. If you remember your attorney swearing on a holy book that he or she would do something or a relative died, be sure to make a note of that. Any communication with your attorney during that time is worth writing down. These will be valuable pieces of evidence for your case. It is also important that you expect the other side to respond to all of your allegations. This will include Answers and Motions from the other side (the alleged wrongdoer). Thus, you should prepare yourself for the variety of things that may happen during the lawsuit. If you go in with even a general idea as to what you will face, you will be able to prepare yourself during the time leading up to a trial should you reach that point. Your case will also experience the discovery process. Discovery is where both sides in the case will review the evidence each of the lawyers and attorney-at-laws and their clients have. The case will also be subjected to what is known as a "motion to produce," which is where each side asks for documents to be handed over that can assist in your case. After all of this has been done, settlement can proceed. Remember that even though you will be going through a lot of legal proceedings, there is no way of knowing how your case will turn out.
Possible Outcomes and Compensation
When suing for legal malpractice in New York there are several potential outcomes and compensation levels, depending upon the success of your case. First, the ability to collect anything is premised upon the existence of a "settled" legal malpractice case, that is one where you will be successful and collect a judgment. This means that the underlying case must have been something that you would have successfully won for damages and would have been awarded a money judgment.
The first type of damages is our old friend "moral condemnation." In English this means punitive damages. The exact amount is up to the court, but these are rarely awarded and to win them you must show the lawyers committed their mis-conduct knowingly or recklessly , or intentionally, or with malice or spite.
The more common form of compensation are out-of-pocket expenses and involuntary costs. These are damages that you had as a result of the first legal malpractice. For example, if you won the case you should have then prosecuted for breach of contract, and won another sum of money for the legal malpractice. That would make you whole. You may also have suffered emotional damages that are compensable.
Yet another type of damages can be described as "benefit of the bargain." Here you are trying to recoup the benefit you would have obtained in the successfully prosecuted case.