Common Mistakes Lawyers Make

 

What are some of the common mistakes lawyers make that can be legal malpractice?

Although there is no precise definition of legal malpractice, generally a lawyer commits negligence when he or she fails to use reasonable care in proving legal services to a client. Reasonable care on the part of a lawyer is that level of care and skill which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful attorneys.

Whether any particular conduct by a lawyer is negligent and whether that negligence is a legal cause of damage can be quite difficult to determine.  Some of the more common types of negligence involve the following:

    • The attorney failed to file a lawsuit within the time required by law.  All claims must be filed within a specific period of time, generally known as the statute of limitations.  If a claim is not brought within the statute of limitations period applicable to the particular type of claim, the case will be dismissed by the court upon a motion by the defendant, regardless of its merit. 

    • The attorney failed to sue the correct people within the period required by law.

    • The case was dismissed or lost because the lawyer failed to diligently pursue the case.

    • The attorney failed to perform adequate and reasonable discovery to prepare the case for trial.

    • The attorney “dumped” the case just before the statute of limitations period expired and, because of the closeness in time, the client is unable to obtain counsel.

    • The attorney did not communicate a settlement offer from the other side which would have been accepted.

These are obviously only a few listing of the types of mistakes that lawyers can make in representing clients.  Not all errors are negligent and, even if negligence occurred, it does not mean that you have a viable claim that can be brought. 

Any lawsuit and any representation of a client involves a degree of judgment made by a lawyer.  Typically, a client should be involved in all of the decision-making at critical points of any claim or any representation; however, there are many decisions that a lawyer must make and is permitted to make without consultation with the client.  Frequently, for instance, it is a matter of an attorney’s judgment as to whether to call a specific witness at trial or whether to depose a particular witness.  While it is common to second-guess after a bad result at trial, such decisions, such decisions are rarely, if ever, the cause for a legal malpractice claim and are protected by what is called “judgmental immunity.”  In short, a legal malpractice claim cannot be based upon a lawyer’s good faith, reasonable exercise of judgment on an issue which does not require consultation with and a decision by the client.

A legal negligence suit requires not only that the attorney was negligent, but that the negligence was a legal cause of the loss or damage to the client.  The element of “legal cause” in proving a case of legal malpractice requires proof that what the attorney did wrong more likely than not affected the result of the work he was hired to perform.  An attorney is not negligent simply because a judge or a jury rules against the client, but only if the adverse outcome was caused by some negligent conduct of the attorney.  This feature is one reason why legal malpractice suits are so complicated and generally require a legal malpractice plaintiff to prove what is referred to as “the case within the case.” 

Typically, not only must a plaintiff suing an attorney prove that the attorney was negligent, but he must also prove that the attorney’s negligence caused an injury.  If the injury was a loss of the case at trial, a reduced settlement, or a smaller verdict than would otherwise have been rendered,  the law requires the plaintiff in a legal malpractice case to prove that if the attorney had properly performed his responsibilities, then the outcome would have been a different and more favorable result.

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