Legal Malpractice

If your attorney was negligent in representing you, you might have a chance to recover damages via a legal malpractice lawsuit. But this is a long putt for a number of reasons. First of all of the laws are written by attorneys. In some states the statute of limitations is as short as six months where you might have two years to sue virtually anyone else. So if your attorney has lost your case then get started immediately on meeting with other attorneys to see if you have a malpractice case and how much time you have to file a lawsuit.

The second problem with these cases is that you really have to prove two cases. You must prove that the attorney was negligent and you must also prove that you would have won in the underlying case. If you were the plaintiff in the first case you must show that you would have won and collected had your attorney not made fundamental mistakes. If you were the defendant in an action you must demonstrate that you would have prevailed except for your attorney’s errors.

In terms of proving negligence by your attorney you can’t simply show that the attorney’s strategy was imperfect, you must demonstrate that he took actions or failed to take actions that no “reasonable” attorney would have done. A common type of malpractice is failing to respond to a motion on time where the consequences were that the case was lost by default.

The next problem is finding the right attorney to represent you. In large cities like Los Angeles or New York this is not a problem. In large cities there are attorneys that specialize in legal malpractice. But in smaller communities it can be quite difficult to find an attorney willing to sue one of his “colleagues” in the legal profession. Plus the few number of malpractice lawsuits in these smaller communities makes it impractical for an attorney to specialize in legal malpractice.

Many engagement letters call for disputes to be resolved between the client and his attorney via binding arbitration. Sounds efficient doesn’t it? The problem is that the judge and jury in binding arbitration are - you guessed it other attorneys. So whenever possible try to have this provision removed before you sign it. If you are suing your attorney for legal malpractice you want the case to be heard before a jury of your peers not a jury of the defendant’s peers.

In selecting an attorney to represent you in your legal malpractice case a critical part of the discussion needs to be the venue where you will file the lawsuit. If it is a small town you want to get away from the judges with which this attorney works every day (unless he is despised by the local legal community). In some cases you can file in Federal court or at least another county so that you will not be fighting against the “home court advantage”.

Finally when you selected this negligent attorney in the first place, did you consider if he is wealthy or has “errors and omissions” insurance. Many single proprietor attorneys do not have this kind of insurance to pay off in the event of their negligence. So if the defendant lawyer is both poor and without insurance then even after winning a legal malpractice lawsuit, there is nothing from which to collect.

So back to basics. Take your time selecting an attorney in the first place. If they handle your case poorly it is tough to get compensated for your losses.