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  4.  » Did Your Lawyer Commit Legal Malpractice? Don’t Make it Worse!

Did Your Lawyer Commit Legal Malpractice? Don’t Make it Worse!

by | Sep 30, 2021 | Legal Malpractice

In late spring, a prospective client reached out to me with a legal malpractice case. He was hit by a Transit bus and had four surgeries. His lawyer, who specialized in Elder Law matters, and not negligence, thought he had 3 years to bring a lawsuit, but didn’t know that municipal entities require a Notice of Claim within 90 days and a lawsuit to be filed within 1 year and 90 days. The lawyer missed the statute and the case got dismissed.

The prospective client and I had a nice conversation. He told me our firm came highly recommended. He was impressed with my knowledge of the law in general and legal malpractice specifically. He said he researched our firm, and perused our settlements and verdicts results in the field of legal malpractice. I was very flattered.

Then It Got Worse

And then, do you know what he did? He hired a solo practitioner that handles mostly automobile cases. I found this out when he called to thank me for my time and told me he would recommend their family and friends to my firm. So, I asked “if you’d recommend your friends to me, why did you hire the other lawyer?” The answer was “he represented my uncle, who said he did a great job”.

Last week the client called again, this time to tell me he made a bad decision going with his uncle’s lawyer and asked if I could take over the case. They are coming in for a meeting next week.

Don’t Make a Fatal Mistake – You need a Legal Malpractice Specialist Because These Cases are Tough

Look, when you are involved in a bad accident, and your lawyer makes an irreversible mistake that leads to a poor outcome, that’s not great news, but it’s also not a fatal mistake. And the reason it isn’t fatal is because you can still hire a malpractice lawyer (your last vestige of hope) to revive your claim, in theory, by suing your original lawyer. But, if you compound the problem and hire the wrong lawyer for your malpractice case, if that lawyer makes a mistake, your case will likely be dismissed forever, with you getting no money for your damages.

Two Trials In One

And let me be clear: proving malpractice isn’t easy. The legal malpractice lawyer has to dig through the original file, review medical records, read trial transcripts, and figure out the merits of the original case and find the specific mistake that caused the malpractice. This is such a time-consuming process that some lawyers charge you to review the original file before they sign on to handle your case on contingency – so always ask a lawyer if there are any up-front costs.

Once the lawyer agrees to pursue your case, then he has to prepare for TWO TRIALS IN ONE:

First, we must prove to a jury that the original attorney committed negligence in handling your case, which caused you harm. For this piece, you need a legal malpractice expert, who documents exactly what your attorney’s mistake was, why it effected your overall outcome, and presents case law to prove this mistake did, in fact, fall under the definition of legal malpractice. It also requires putting your first attorney on the witness stand, who likely won’t admit he made a mistake, which unfortunately could persuade a jury not to find him responsible, unless an experienced lawyer can corner him into an admission.

Second, to demonstrate that the attorney’s error caused you harm, we need to re-litigate your first case and show that if that negligence had not occurred, you would have received a substantially more favorable result than you did, and you would have been able to collect money from the original defendant.

A Hypothetical Example

To see how this all plays out, let’s use a hypothetical: we will say the original lawsuit involved a pedestrian suffering a badly fractured leg after he was knocked down by an uninsured automobile. Let’s also assume the pedestrian was crossing against the light. And we will assume the first lawyer wasn’t ready for trial and the case got dismissed.

To win the legal malpractice case, we must prove:

    1. The original defendant (the uninsured driver) was at fault (because a jury could find the accident was caused by the pedestrian crossing against the light and that the driver did nothing wrong).
    2. Orthopedic injuries, which will require an orthopedic expert.
    3. If the driver was uninsured, we need to prove that even though there was no insurance to collect, the original defendant had assets.
    4. Finally, we need to tie it all together and prove your lawyer made a critical mistake that ruined your chances for victory – not that he was lazy or did a poor job – but that he departed from the standards of good legal practice by failing to use the ordinary skill and care that would be used by other lawyers in handling a similar case. Thus, we need to prove that if he was ready for trial, we would have gotten a favorable settlement of verdict.

Like I said, it’s not easy.

Legal Malpractice v. A Simple Mistake and Which Cases Will Succeed

Therefore, the simplest cases in legal malpractice, where a crystal clear, major error took place, have the strongest chances of succeeding. Cases that usually look like winners are:

    1. The lawyer blew the statute of limitations – not getting your claim or lawsuit filed in the allowable time.
    2. The lawyer didn’t hire experts for trial and the case was dismissed for failure to prove an element of your case.
    3. The lawyer stole or misused money paid in the retainer or paid from the settlement.
    4. The lawyer didn’t get your permission to settle your case and did so anyway, sticking you with the paltry sum he negotiated.

Cases specialists tend not to pursue are the ones where the client has a BAD FEELING about their lawyer or simply weren’t satisfied with the representation they received. They say things like “my lawyer did a poor job at trial”, or “my divorce attorney charged a ton of money and I didn’t get full custody”, or “the jury found me guilty, even though I didn’t commit the crime”.

Just because your lawyer did a poor job or the other lawyer did a better job, isn’t a departure from the standards of legal practice. Not every lawyer is a gifted litigator – and lawyers, like all other professionals, make mistakes. So, from the beginning, choose the right legal malpractice lawyer – they will save you time and money.

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