If you believe your lawyer hasn't properly represented you, and has harmed you in the process, you'll want to first try alternatives to litigation, such as:
If none of these alternatives brings you satisfaction, you may want to consider a legal malpractice claim. This type of case is difficult to prove, so you'll want to thoroughly investigate your chances of success before proceeding.
Types of Legal Malpractice Claims
Every case is different, but legal malpractice claims usually fall under three categories:
Negligence happens when your attorney's processing of your case isn't up to the standard of skill and care that would be expected of a competent attorney handling that particular kind of case. Examples of negligence include:
- Failing to file a lawsuit within the statute of limitations time required under law
- Missing other important deadlines in the case
- Not properly preparing for trial
- Not following court orders
Most legal malpractice claims that end up in court are a result of lawyer negligence.
Breach of fiduciary duty usually occurs when your lawyer has a conflict of interest that harms you in some way. Examples of breach of fiduciary duty include:
- Representing another client to your disadvantage (such as representing another defendant in the same lawsuit)
- Having financial or social ties or troubles that prevent your lawyer from representing you to your best advantage
- Improper sexual advances toward you
- Lying to you about important case information
- Not communicating settlement offers
- Settling your case for less than it was worth without your approval
- Inappropriately using money belonging to you
Breach of contract cases are occasionally brought against lawyers who violate the terms of their specific agreement with their client.
Proving A Legal Malpractice Case
To win a negligence case against a lawyer, you must prove:
- Your lawyer owed you a duty to competently represent you
- He or she made a mistake or otherwise breached the duty owed to you
- Your lawyer's mistake injured or harmed you in a way that can be measured financially
Legal malpractice attorneys usually charge a contingency fee of between 40 and 50 percent of the amount you eventually receive. This is a higher contingency fee than other types of negligence cases, because the legal malpractice lawyer has to work harder at proving a legal malpractice case. In order to establish your damages, the legal malpractice lawyer must prove that:
- You would have won your underlying case if your lawyer had not been incompetent or otherwise made a mistake
- You would have been able to collect on a judgment on your underlying case after winning the case
As these things are difficult to prove, most legal malpractice cases are tried in court rather than settled, requiring a lot more preparation from your legal malpractice lawyer.
Any legal malpractice lawyer considering taking your case will want to know whether your original lawyer had malpractice insurance to cover your losses, and will balance whether your provable losses are high enough to risk investing the time and energy to take the matter to trial.
The time limit for filing a legal malpractice case - called a statute of limitations - can be as short as one year, so it's best to contact a legal malpractice lawyer right away if you think you might have a legal malpractice case.
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