Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

The Role Of a Reputable Accident Attorney

All accident attorneys are not created equal. Some attorneys may be very effective in general aspects of negligence claims, and have little experience with some specifics. Accident claims are all unique in case particulars and personal situations, with determination of punitive damages needing evaluation. Compensatory damages for property can be relatively simple, but personal injuries often include a “pain and suffering” component. Calculating an appropriate punitive remuneration amount can be complicated, so it is important to retain an accident attorney with a solid track record.

What is Reputable?

Obviously, a reputation can be established in multiple ways. Some attorneys will not take cases of a particular type, and states are reluctant to certify attorneys in specific areas of law. There are still a few indicators of attorney experience and effectiveness. Many attorneys rely largely on personal references from clients, and this may be the most effective method of advertising. Merely choosing an accident attorney based on a single advertisement may not be advisable.

Reputable attorneys will often be registered with state legal associations, such as Super Attorneys, and some state professional associations certify trial attorneys. Any professional certification indicates respect among their peers, and is always a positive. The Internet is an excellent source of information regarding solid attorneys provide: some sites provide a matching service between clients and attorneys, whilst other sites offer reviews from previous clients allowing you to make a more informed choice over who to hire. Always remember it is important to choose the right lawyer for your case who has your interests in mind and do a comprehensive analysis.

What Does An Accident Attorney Do?

Retaining the right attorney can make a big difference in the value of a case, especially if a specific attorney is willing and able to present case evidence in a method that maximizes the client’s financial benefit. Good accident attorneys leave no stone alone in an assessment of possible negligent parties in an accident. Claims are always assessed for compensatory and punitive damage amounts, and the courts will routinely assign percentages of fault in cases with multiple respondents.

An experienced attorney will file claims against all negligent parties, both physical injury and property, and use similar values to illustrate the request for reasonable remuneration. Many times a settlement is negotiated to prevent the insurance company or responsible party from admitting guilt, so negotiation skills are crucial. A solid attorney knows how to leverage this situation.

Negotiation Skills

All accident attorneys understand the basics of filing an injury claim, as some cases indicate clear lines of negligence and fault. The real skill for an attorney is in the negotiation process, especially if the primary responsible defendant has financial resources that may be attainable beyond insurance coverage. Insurance polices all have monetary caps, and their coverage responsibility stops at the cap. That is not necessarily true for individuals with additional resources in cases that calculated higher in damages. Furthermore, when multiple negligent respondents are involved, the total amount of the claim may be settled significantly higher with an attorney that is skilled in multiple and simultaneous negotiations.

Reputable attorneys clearly earn their reputation, regardless of what it may be. It is important for each claimant to choose an attorney that is right for the case, with a reasonable amount of research. Location of the case and the attorney’s familiarity with the local court system can be a good place to start, as this indicates that the attorneys may actually know the judges and local court policy.

Attorneys who maintain good working relationships with court management can be an advantage in cases that may require unique motions. Never hire an attorney on a hunch. Always get some solid information first.

5 Critical Mistakes Often Made When Hiring an Attorney & How to Avoid Those Mistakes

Hiring an Attorney with Little Experience

1. People often hire an attorney that has little or no experience in the area of practice in which they seek representation. A person that has used an attorney to handle one area of the law may not want to have that same lawyer handle another area of the law. Even if the past representation was excellent, that attorney may be the wrong choice for a different facet of the law. The practice of law has become increasingly specialized and there are fewer and fewer general practitioners who can effectively handle multiple practice areas. If you choose an attorney who concentrates in your particular area that you need help in, you stand a much greater chance of success. You can increase your chances of success even further if you find an attorney who not only concentrates in your particular area, but also has had a lengthy track record of experience in the particular area. There is no substitute for experience. It can take 3-5 years to become proficient in an area of practice if the attorney engages in that area consistently. For an attorney who does only one or two cases like yours per year, he likely will never become proficient in that area.

Choosing an Attorney Solely On Price

2. People sometimes choose an attorney solely on price. Don’t let price be the determining factor when hiring an attorney. It should be one of many factors, but never the only factor. This price shopping mentality could be a very critical mistake depending upon the area of law. A quality attorney can often wind up saving a client a substantial amount of money by knowing how to properly handle a case. Saving a little money in the initial hiring process can sometimes lead to bigger losses in the long run. The old adage that you get what you pay for is often true.

Now that is not to say that a less expensive attorney is always inferior or that a less expensive attorney will provide sub par representation. However, I would never hire the $99.00 attorney just because he is the cheapest. That lawyer may be less experienced. That lawyer may be able to charge less because he does less. He may not be willing to respond to your questions or attend to the details required to make your case go smoothly. Beware of lawyers who advertise a very low introductory fee and then add on for additional services that other lawyers may include in their flat fee agreements. I would also not hire an attorney who was charging an exorbitant amount as well. We live in a capitalistic society and some attorneys charge the moon and the stars for their services. The most expensive attorney is not necessarily the best. I would focus on hiring quality representation that leads to positive results. A respected attorney would deliver that benefit for a reasonable fee and would provide a written contract describing his services in an understandable form contract.

Failing To Ask Critical Questions

3. People don’t ask critical questions at the hiring stage as to the attorney’s ability, experience, knowledge and rate of success. Be prepared to ask direct questions of the prospective attorney. After all, you are the consumer and you should have a clear picture of the attorney that you are hiring. The attorney should be asked how many cases of this nature does he handle and what percentage of his practice involves this area? Will he personally oversee the case or just delegate it to an associate or legal assistant? Will he be available for ongoing questions either in person or on the telephone? How many years has the attorney been engaged in the particular area and what is his success rate? Can he provide any names of satisfied clients? Does the attorney take ongoing legal education training in the particular area? Is he a member of any local, state or national organizations that relate to the particular area? What is his reputation like among his peers? Would he be able to provide any references? Does he have any published works on the subject or has he prepared any helpful educational material on the subject that you can review? These are just some of the questions that should be asked at the initial interview stage. Your legal situation is of great importance in your life. Take the time to ask the prospective attorney some uncomfortable questions. The answers will be very telling. You will know within minutes whether or not you are meeting with a qualified attorney who is right for you.

Don’t Overpay In Return For Inferior Service

4. Overpaying for inferior service. Lawyers are in the service business. If they are not providing excellent client services then they are not worth hiring. The client should have great access to the attorney and to their personal file information. Some attorneys charge a high premium yet provide very poor service. Some attorneys restrict access by limiting the times, days and hours that file information can be obtained. Make sure that you will be treated with respect at all times. And that means having your questions answered or telephone calls returned within a reasonable period of time. Make sure that the attorney or law firm that you hire values you as a client and that you are not perceived as just another number. Will you receive friendly treatment from the attorney and the staff? These are factors that you should greatly consider when choosing an attorney. When you meet with an attorney for the first time at his office, evaluate the service factor of both the attorney and the staff. Is this a place that you would feel comfortable dealing with for weeks or months? What does your gut say with regard to the services being provided?

Not Checking the Attorney’s Status and References

5. Not checking the attorney’s status with the licensing board and not checking with any references if they were provided is the final critical mistake to avoid. Wouldn’t you like to know if the attorney that you are interested in hiring is listed in good standing? What if there were outstanding complaints against that attorney for neglect or worse? These are issues that would certainly affect your hiring decision if you were aware of them. Also, did you check with any of the references that were provided? Did you call every one of the names provided to see if they would highly recommend the attorney? Was their case even remotely similar or in the same area of law as yours? Have them point out at least one weakness in the attorney’s representation or at least one area that could use improvement. A little effort at the outset of your case by way of research can make a world of difference in your choice of attorneys.