If your attorney asks you to do something dishonest or unethical run for the hills. If they lie to others they will lie to you. If you find them in a small lie to you, this is likely the tip of the iceberg.
The situation is not as bad as the joke: “99% of attorneys give the other 1% a bad name.” But I have been lied to and cheated by enough attorneys to know that this is not a rare occurrence either.
If you have proof of attorney dishonesty you can usually report it to the State Bar. But this is a slow process, run by other attorneys and will do nothing to recover your damages.
So if you ever see a sign that your attorney is not 100% honest and ethical then find another one to represent you – immediately.
Sunday, November 28, 2010
Saturday, October 9, 2010
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.
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.
Tuesday, March 23, 2010
Does your attorney consider both state and federal district court?
“If your only tool is a hammer then you view every problem as a nail.” For those attorneys that are only experienced in state court they are not very likely to consider filing in federal court.
Far more attorneys practice law in state courts rather than in federal court. However, those that practice in federal district courts are almost always admitted to a state bar.
But all things being equal on a civil action where I am the plaintiff, I would prefer an attorney that works and has practiced in both arenas. If your attorney is not admitted to practice in federal court he will always file in state court. I would prefer an attorney that has tried cases numerous times in both state and federal court and can make an experienced assessment to determine if you are better served by filing your lawsuit in federal district court or state court (it varies by the case).
But if you don’t investigate this critical question, it is unlikely your prospective attorney will bring the subject up.
Far more attorneys practice law in state courts rather than in federal court. However, those that practice in federal district courts are almost always admitted to a state bar.
But all things being equal on a civil action where I am the plaintiff, I would prefer an attorney that works and has practiced in both arenas. If your attorney is not admitted to practice in federal court he will always file in state court. I would prefer an attorney that has tried cases numerous times in both state and federal court and can make an experienced assessment to determine if you are better served by filing your lawsuit in federal district court or state court (it varies by the case).
But if you don’t investigate this critical question, it is unlikely your prospective attorney will bring the subject up.
Saturday, October 31, 2009
Attorneys increase billable hours at their dictionary
I read plenty of legal briefs, motions and complaints as part of my business of investing in lawsuits. And I am always struck with the language. Not only are many lawyers paid by the hour but I suspect they sometimes increase their billings with time at the dictionary replacing commonly understood words with the indecipherable.
I just read a motion that used the word “inapposite” rather than “not pertinent”. Why? Do attorneys think their average client understands the rarely used word (or anyone else for that matter)?
Powerful and effective language is using words and phrases that are both uncommon but broadly understood. Words that are used too frequently can annoy the reader and words that are not broadly understood are not very effective in communicating a message.
I just read a motion that used the word “inapposite” rather than “not pertinent”. Why? Do attorneys think their average client understands the rarely used word (or anyone else for that matter)?
Powerful and effective language is using words and phrases that are both uncommon but broadly understood. Words that are used too frequently can annoy the reader and words that are not broadly understood are not very effective in communicating a message.
Friday, September 4, 2009
Should there be a single payer legal system?
http://online.wsj.com/article/SB10001424052970204731804574387021307651050.html?mod=wsj_share_facebook
Great op-ed piece in the WSJ about the concept of the Federal government taking over the legal industry. Great fun!
Great op-ed piece in the WSJ about the concept of the Federal government taking over the legal industry. Great fun!
Friday, August 28, 2009
Defense Attorneys Milking Cases
Defense attorneys are milking cases for all they are worth today. Two litigation attorneys I spoke with this week said they have never seen it so bad.
During “good times” defense attorneys that are paid by the hour usually milk a case for a minimum amount before settling. But as these law firms are getting less work than normal they are tending to make up the difference by spending more time per case. The net result is that it takes longer to settle a case than a few years ago.
During “good times” defense attorneys that are paid by the hour usually milk a case for a minimum amount before settling. But as these law firms are getting less work than normal they are tending to make up the difference by spending more time per case. The net result is that it takes longer to settle a case than a few years ago.
Saturday, August 1, 2009
If your attorney drops you
If your attorney has taken your case on contingency and subsequently doesn't like the odds of winning he will drop you as a client. Now there is a process they must go through including notifying you, making a motion to the court to withdraw as counsel and then receiving the approval of the court for withdrawal.
Before this motion has been approved they still have a duty to represent you but their heart is not really in it. So if they are bailing on you, you need to move into overdrive to get a new attorney. This will be twice has hard as getting an attorney the first time because the second group of attorneys will think one or more of the following situations exists:
1) you do not have much of a case
2) you are a difficult client to work with
3) the prior attorneys have messed up the case already
4) even if they win and collect a judgment they may have to share some of their fees with the prior attorneys.
I have worked with folks that try to resist their prior attorneys dropping them. And you need to understand why the case is being dropped and can the case and the relationship be salvaged but you also need to move into action to find a new one.
Before this motion has been approved they still have a duty to represent you but their heart is not really in it. So if they are bailing on you, you need to move into overdrive to get a new attorney. This will be twice has hard as getting an attorney the first time because the second group of attorneys will think one or more of the following situations exists:
1) you do not have much of a case
2) you are a difficult client to work with
3) the prior attorneys have messed up the case already
4) even if they win and collect a judgment they may have to share some of their fees with the prior attorneys.
I have worked with folks that try to resist their prior attorneys dropping them. And you need to understand why the case is being dropped and can the case and the relationship be salvaged but you also need to move into action to find a new one.
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