Lawyers perform a wide array of services. As an advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations. As an advocate, a lawyer zealously argues his client’s case under the rules of our adversary system of justice. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.
Lawyers, like all professionals, owe a special duty to their client to handle their case competently, promptly and diligently. This duty includes keeping in communication with the client about the status of their case.
When lawyers are negligent in their handling of a case, often the consequences can be devastating. Sloppiness, such as missing an important deadline, or a statute of limitations can result in the total forfeiture of one’s legal rights, property or their ability to seek justice for a wrong.
Our office regularly receives calls from clients who have been the victim of legal malpractice. Their stories usually begin with: “We placed our total trust in our lawyer, and we were never advised that he lacked the time or legal expertise to handle our case.”
One such client recently came to our office with a case involving a serious violation of his First Amendment rights. He had hired a respected lawyer and former judge to take his case. The lawyer waited until the last day to timely file his lawsuit, but then delayed over nine months serving it on the City of Crossville. The deadline for serving a federal lawsuit is ninety days after it is filed. By then, the applicable statute of limitations had expired. The City moved to dismiss the case, and this technical defense was fatal to his claims. All the while, the lawyer kept his client in the dark regarding his lack of diligence in prosecuting his case.
While legal malpractice cases can be complex, in some cases filing a malpractice suit against a lawyer who was negligent in handling your case may be your only recourse. The legal malpractice may be obvious, such as a missed deadline or statute of limitations. Other times, the issue may fall in the “gray” area regarding whether legal malpractice occurred and whether it had a significant impact on the outcome of your case.
Legal malpractice cases are two cases in one. You must prove not only that your attorney was negligent in handling your case, but you must also prove that but for this negligence, you would have received a more favorable outcome, settlement, or judgment than you did. This requires a careful analysis of the underlying case in order to meet this “but for” test. Even when the attorney in your original case made a serious error, a jury may feel you would have lost the case no matter what.
There are several steps you can take if you believe you have been the victim of legal malpractice.
Obtain your case file from your original attorney;
Gather all documentation pertaining to the original case;
Contact a legal malpractice attorney to evaluate your likelihood of success;
Act quickly. You only have one year within which to file suit;
While it’s true that not every mistake that an attorney makes can be considered grounds for legal malpractice actions, it’s also true that many very common professional mistakes affecting nearly every area of the law regularly lead to professional liability claims.
Here are some of the most common mistakes leading to legal malpractice liability:
Missed deadlines. Failing to file documents on time can lead to serious negative outcomes and loss of legal rights.
Inadequate investigation or discovery. If an attorney does not perform a sufficient investigation and fails to discover facts that are important to a particular case – such as failing to identify a key witness – they could be liable for legal malpractice.
Failure to know or apply the law. If the attorney does not apply a law correctly, misunderstands it, or fails to keep up with changes that have been made to laws within his or her jurisdiction, a legal malpractice claim could be on its way.
Larry L. Crain
Crain Law Group, PLLC
