If you believe that you have been the victim of legal malpractice, you should file a claim. However, many people don't know how to file a legal malpractice claim. This article will guide you through the necessary steps to filing a legal malpractice claim. An experienced legal malpractice attorney can make the process easier and increase your chance of success.
A legal malpractice claim is filed against a lawyer when they didn't do what they were supposed to do, and their client suffered harm as a result.
Many actions could constitute legal malpractice. A few of the more common reasons include:
Once you believe you have a valid legal malpractice claim, you must discover what is required to file your claim.
For a legal malpractice claim to succeed, the basic elements of the claim must be proven, including:
If you or a legal malpractice attorney can prove each of these elements, then your case will have a chance of succeeding in court.
First, you must prove that a lawyer-client relationship existed. This is perhaps not as straightforward as it sounds. Sometimes people believe they have created a lawyer-client relationship when none actually exists.
A prospective client is an individual who confers with a lawyer about potentially entering into a lawyer-client relationship. If a person sends one-way information to a lawyer — without having substantial reason to expect the lawyer is open to forming a lawyer-client relationship — they are not considered a prospective client.
The easiest way to prove a lawyer-client relationship is to produce a written retainer agreement. When you enter into a lawyer-client relationship, the lawyer will often give the client a copy of this agreement. But even if no formal written retainer letter exists, you still may be able to prove the lawyer-client relationship because the attorney actually started to represent you.
Next, you must prove that your attorney was negligent. Some of the relatively common negligence claims against attorneys include:
While this list is not exclusive of other potentially valid claims for negligence, these are three of the most common. If you believe your attorney has behaved negligently, your best option is to seek out and discuss your options with a professional legal malpractice attorney.
Communication errors can be frustrating in any situation. However, when the person miscommunicating with you is your attorney, the error can feel more like professional negligence — and indeed, you may be right.
If your attorney has failed to communicate the details of a settlement offer with you, this may constitute professional negligence. Unless you gave your lawyer explicit instructions on when to accept or reject a settlement, this behavior might constitute negligence on the part of your attorney.
An attorney may also breach an agreement he has with you. When you start an attorney-client relationship, you have, in fact, entered into a contractual relationship where both parties have obligations to the other. For example, your attorney will have a general obligation not to reveal information you have given in confidence, whereas you may have a duty to pay for the legal services.
If your attorney has done something to breach the contract based on your attorney-client relationship, then this may qualify as both a breach of contract and negligence on the part of your lawyer. An experienced lawyer will help you decide whether you should pursue your claims as negligence claims and/or breach of contract claims.
Perhaps you feel that your lawyer failed to meet the standard duty of care that an attorney owes to the client. Unfortunately, standard of care can be a gray area. One of the most difficult aspects of suing for professional negligence involves proving that the lawyer crossed the line in failing to meet a duty of care. You will likely require expert testimony to prove your lawyer breached the standard of care. Depending on the case, retaining a legal malpractice expert can be expensive.
A few examples of attorneys that failed to meet their duty of care include:
Once you establish evidence of attorney negligence, you must prove that the attorney's error resulted in financial damages.
For example, these damages may result from you losing a case because your attorney allowed the statute of limitations to expire. An even more direct example is a lawyer who lost their client's money or other assets.
In other instances, the causation may be a more tenuous link. For example, an attorney who gives incorrect legal advice may be negligent. Still, if the client didn't act on this advice and was highly unlikely to win the case in question even if they received the correct advice, it would be difficult to prove that the attorney's error caused the client's damages.
As you can see, some areas of the law are gray. While it is impossible to predict every case that will succeed or fail in court, your best course of action is to contact an experienced legal malpractice lawyer. They will be able to listen to the various aspects of your case and offer an informed opinion on whether it is worth taking legal action.
If the attorney's behavior is judged to constitute legal malpractice, you may receive various damages depending on your state. On the other hand, your case may settle out of court.
If the attorney's behavior is not deemed to constitute legal malpractice, then you will not receive damages or a settlement.
Deciding whether or not to file a legal malpractice claim can be difficult, especially when you feel that you have been treated unjustly. The best thing you can do is discuss the situation with an unbiased and experienced legal malpractice attorney to determine the potential merits of your case. King & Jones are experienced lawyers offering legal malpractice services in Chicago and throughout the United States. If you have a legal malpractice claim, contact us today.