What is Legal Malpractice?
Although plenty of people are familiar with the concept of medical malpractice, not as many people are aware that legal malpractice also exists. Unfortunately, this type of malpractice can have a similar disastrous effect on your livelihood as any other type of injury or malpractice case. It’s for this reason that finding a trusted West Virginia legal malpractice firm is so important. In order to help you identify legal malpractice, and understand the steps in dealing with it, below is an explanation of some of the most common components.
What is Attorney Malpractice?
Professional malpractice involves the breach of a standard of care required by the profession. For attorneys, this may mean a failure to represent you properly. This could mean not filing you case on time (statute of limitations), missing another court deadline, failing to conduct proper discovery to prepare your case effectively or many other negligent acts or omissions. The cause of this may vary. It could be that the lawyer has little or no experience in the type a specific area of law, it could be an inter office oversight, it could be laziness or lack of skill. Regardless of reason attorney malpractice hurts you, the client. If that happens our firm has the experience you need to identify legal malpractice and seek the compensation you deserve.
According to the American Bar Association the ten most common Legal Malpractice Errors are:
– Failure to File Documents within Deadlines (the lawsuit)
– Failure to know and/or apply the Law
– Planning Error, Making Substantive Mistakes
– Failure to File Documents within Deadlines
– Not Appearing in Court When Required
– Collecting Fees Up Front and Not Performing Work
– Inadequate Discovery and Investigation
– Failure to Obtain Client Consent
– Conflict of Interest
– Misusing Client Funds
– Breach of Duty or Confidentiality
Proving a case against an attorney or law firm can be difficult.Proving a case against an attorney or law firm can be difficult. They are often referred to as a “case within a case” because in a legal malpractice case the plaintiff must demonstrate that their injury or lack of compensation would not have occurred had it not been for the negligent conduct of their attorney. Therefore a plaintiff must prove both the negligence of their previous counsel but that they would have prevailed in the underlying action. These cases are defended by attacking both aspects of the case.
Whether your case involved a personal injury claim, wrongful death, medical malpractice or breach of contract, serious mistakes can unnecessarily cost you a lot of money, energy, and time. Because we have over 80 years of combined experience in most areas of litigation, we have the knowledge you need to navigate the case within a case hurdle.
Our firm can also assist in determining whether or not a legal malpractice case should be filed as a negligence action, a breach of contract action or both. For example where the act complained of is a breach of specific terms of the contract between the lawyer and client (whether written or oral) without reference to the legal duties imposed by law on the attorney, the action is contractual. When the legal malpractice claim arises from a breach of duty imposed by law on the attorney and not of the contract itself, then the action is one of negligence.
Sometimes what a client believes is legal malpractice is actually a breach of an ethical standard by the attorney. Violation of an ethical standard (like failing to communicate or misrepresenting matters to a client) is not in and of itself a basis for a legal malpractice claim unless there is a breach of the standard of practice as well.
As you can see, the practice of law can be very complicated. There are substantive laws, procedural laws, trial court rules, and ethical rules that play a role in assessing a legal malpractice claim.
What to Expect from a Legal Malpractice Case
Attorneys that represent a client in a legal malpractice case typically don’t get paid unless they win. This reduces any financial risk for the client and ensures that their representation only has their best interests in mind. Although communication is always recommended in dealing with an attorney you suspect of legal malpractice, sometimes the only option is to find a knowledgeable attorney and move ahead with a suit.
In the case of winning a malpractice suit, the damages awarded to the injured party can vary wildly, depending on the extent of the damage, as well as depending on the precise nature of the attorney’s malpractice. If the offending attorney is caught doing something particularly outrageous or trying to cover up his negligence, most states including West Virginia permit a separate award of punitive damages to punish the attorney for his conduct. This goes beyond an award to compensate you for your loss.
The most important thing to remember with a legal malpractice suit is that, despite being difficult to prove, they can be an effective tool for getting you the justice you deserve. Everyone deserves a fair chance in court, and you should not be punished because of an attorney’s negligent actions. If you think your attorney might not have properly representing you, then it is time to seek the services of someone that will. If you have questions about a legal malpractice claim, call our office and one of our attorneys would be glad to speak with you.