Navigating Complexities in Legal Malpractice Litigation

Searching for a legal malpractice attorney can feel intimidating.

Your attorney should have fought for your interests, but their mistakes cost you real money and time. Now you need another attorney to help you recover.

The good news is:

Once you learn how legal malpractice litigation works, you are in a better position. And with the right strategy, you can help hold negligent attorneys responsible.

What Exactly Is Legal Malpractice?
The Four Elements You Must Prove
Common Types of Attorney Negligence
How To Find The Right Malpractice Lawyer
What To Expect During Your Case

What Exactly Is Legal Malpractice?

The simple answer is professional negligence by an attorney.

This means your attorney had an obligation to meet professional standards, and they failed. As a result of their mistake, you lost or suffered financially or otherwise.

Lawyers are responsible for handling your case in a competent manner. When they breach that duty and you suffer damages as a result, you have a malpractice case.

These lawsuits are a big deal. Per the ABA Journal, 70 percent of major insurers paid claims that exceeded $50 million in a recent year. Payouts hit as much as $300 million in some cases.

Legal malpractice attorney representation is important because the litigation is complicated. In essence, you are required to prove two things: that your attorney made a material mistake and that that error caused your loss. If you are facing attorney negligence, your first step to seeking justice is to learn more about legal malpractice claims.

The Four Elements You Must Prove

Every legal malpractice case has four key elements. If you don’t have evidence to prove one, your claim will not be successful.

Attorney-Client Relationship

Your attorney owed you a duty of care. This usually doesn’t require much proof if you hired and paid them to represent you.

Breach of Duty

You must show your attorney made an error that a reasonable lawyer would not have. The error might be a missed deadline, failure to investigate or follow up, or providing incorrect legal advice.

Causation

This element gets complicated quickly. You need to prove your original case would have been successful if your lawyer had acted appropriately. This is often referred to as the “case within a case” requirement.

Damages

You need to be able to show the court or jury actual financial damages resulting from the attorney’s mistake.

Common Types of Attorney Negligence

Not every error by your attorney will amount to legal malpractice. However, there are several types of negligence that occur regularly.

These include:

Missing filing deadlines and statutes of limitations
Failure to properly investigate the facts of the case
Conflicts of interest that are not disclosed to the client
Settling without your approval
Poor communication about the status of your case
Inadequate legal research

A study by the Florida Bar found the average attorney that is named in a malpractice claim has 22 years of experience. You do not have to be a new lawyer to make a mistake.

Estate and trust matters lead to the highest number of malpractice claims, followed by real estate transactions and personal injury cases.

How To Find The Right Malpractice Lawyer

Searching for a legal malpractice attorney is different from hiring a regular attorney.

Look For Specialization

Legal malpractice is a specialized area of law. Not all attorneys take these cases. You will want to find someone that specifically handles legal malpractice litigation. They understand the nuances and know what evidence to gather.

Check Their Track Record

Ask potential attorneys about their experience with similar cases. How many malpractice claims have they taken on? What were the results?

Understand Fee Structures

Most malpractice attorneys work on a contingency basis. This means they only get paid if you win the lawsuit. Make sure you understand the percentage they will receive and if there are any costs you would be responsible for.

Request References

Any good attorney will provide you with references from past clients. Make sure you actually call them.

Evaluate Communication

Pay attention to how well and how quickly an attorney responds during your initial consultation. You got into this mess because of poor communication from a lawyer. Don’t repeat that mistake again.

What To Expect During Your Case

Malpractice litigation takes time. The study from Florida Bar revealed the average claim took 2.9 years to resolve.

The following is how the process typically goes:

Initial Consultation

Your new attorney will review your old case files to evaluate whether malpractice occurred. They analyze the strength of your claim and the likelihood of a recovery.

Investigation Phase

Evidence gathering takes a lot of work. Your new attorney will collect documents, interview witnesses, and often consult expert witnesses. The goal is to determine the standard of care that was breached.

Filing The Lawsuit

Once the evidence supports your claim, your attorney will file suit against the negligent attorney. In most cases, the defendant’s malpractice insurance carrier will handle the defense.

Discovery

Both parties are required to exchange information about the case. Depositions are taken. Expert witnesses offer opinions on whether the attorney’s behavior fell below professional standards.

Settlement Negotiations

Most cases end in settlement before trial. Insurance carriers often prefer negotiated settlements to the risk of jury verdicts.

Trial

If no settlement is reached, your case will go to trial. A judge or jury will determine liability and damages.

One last thing you need to know:

Almost 30% of malpractice claims result in no payment to the plaintiff. This makes selecting a strong case and having experienced representation that much more critical.

Protecting Your Interests

Keep detailed records of everything as your case progresses. Maintain copies of all communications with your original attorney. Document exactly how their negligence financially and personally impacted you.

Statutes of limitations apply to malpractice claims as with any lawsuit. Each state has a different time period, usually one to six years from the date of when you discovered the malpractice occurred. Act quickly to protect your rights to seek compensation.

Wrapping Things Up

Litigating legal malpractice can be hard work, but it is a winnable fight if you know what you are doing.

The key takeaways are simple:

Understand what constitutes legal malpractice
Gather documentation about your attorney’s mistakes
Seek legal malpractice attorney representation
Prepare for a process that will take many years

Your attorney was supposed to fight for your interests. When they fail, you deserve to be compensated for their breach of trust.

Searching for a legal malpractice attorney is how you start down the path to remedying the situation. The right attorney will help you recover your losses and hold negligent lawyers responsible for their mistakes.

Don’t let the process intimidate you. With the right information and expectations, you can be successful in this endeavor.

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