Legal Malpractice Revealed
To prove legal malpractice, there must be a breach of duty that is the proximate cause of injury. What does this mean? A competent attorney giving a competent defense will result in a better outcome than one that is negligent. In order to prevail on a legal malpractice claim, an attorney must fulfill the standard of care in their representation. When they fail, it is termed as "a breach of duty."
Connecticut attorneys owe a duty of care to clients. The standard is measured by how a similarly trained and experienced attorney would act under similar circumstances. There needs to be a deviation from the expected behavior for legal malpractice to exist. This deviation can be a failure to follow the law or make appropriate filings and appearing on time at hearings.
In Connecticut, common forms of negligence include failure to file documents, negligent handling of court matters, missing statutes of limitation , and inadequately preparing for hearings. Mishearing deadlines has an adverse effect on your case and may result in your case being dismissed or thrown out of court. Even when you believe that your attorney is competent and capable, it is critical to remember that you are responsible for your cause and time limitations will apply.
So what are the types of legal malpractice and their respective examples? Legal malpractice can entail negligence resulting in criminal punishment. For instance, failing to provide a defense mechanism in criminal cases leaving the defendant with no defense. Another form is civil malpractice which occurs during the settlement of a case. For example, attorneys fail to discover claims which then becomes a liability for clients. Legal malpractice can also occur when there is improper retention of a judgment. An individual could be at risk in having a creditor seize funds from the bank account prior to disbursement from the firm. Legal malpractice can lead to civil suits.
Recognizing the Need for a Legal Malpractice Lawyer
In some cases, the lawyer’s [or law firm’s malpractice] conduct is so egregious or continues over a period of time that the damage becomes evident. For instance, if you are arrested and the attorney agrees to represent you but never shows up for the bail hearing, it could be a sign that you may have been the victim of legal malpractice. If your lawyer represents you in a civil suit and fails to file your appeal before the deadline or has let a lawsuit passed the statute of limitations, you may have grounds for a legal malpractice case.
Unfortunately, in Connecticut as well as Florida, failure to file within the statute of limitations is the leading cause of legal malpractice. For legal malpractice to occur in this scenario, the attorney must have known or should have known that the applicable statute of limitations was approaching. In addition, the adversary must have acted in such a way that the client would not have known of the pending law suit (i.e.; application for an injunction, fraud or deception). Examples of missed deadlines are as follows: A car accident where a suit is not filed, or a contract dispute where the defendant is never served with complaint.
Failure to timely file an appeal or have a judge review an issue such as a sentencing error on a criminal matter is also a common type of legal malpractice. You may have been the victim of legal malpractice if your former attorney either did not comply with the court’s orders or acted in a way that caused the court to look unfavorably upon you and your case during the proceedings. Legal negligence could also occur if your lawyer:
However, simply because your lawyer lost your case does not mean you have a legal malpractice claim. Attorneys may lose cases for a variety of reasons that are outside of their control and can sometimes be achieved by inadequate preparation. But, if it appears that there may have been a problem with the way your lawyer handled your case, you have every right to bring the matter to the attention of the State Bar. A complaint filed against the responsible lawyer could be what is needed to rectify this situation.
Therefore, it is important to consult with an experienced attorney if you think you may have been the victim of legal malpractice. CT full service legal malpractice attorneys are here to help you determine whether you have a viable case and what your legal options may be.
Selecting an Attorney in Connecticut
When selecting an attorney for your legal malpractice case in Connecticut, there are several factors to consider. These include experience, specialization, and client reviews. First and foremost, look for an attorney with extensive experience in handling legal malpractice cases. They should be familiar with the Rules of Professional Conduct and have successfully represented clients in similar situations. Additionally, seek out attorneys who specialize in legal malpractice cases. These attorneys should have access to experts in closely related fields, which may be crucial to the success of your case. Client reviews and referrals can also provide insight into the lawyer’s reputation and track record. Look for feedback on their legal expertise, communication skills, and ability to handle complex legal issues. By factoring in these considerations, you can find the right legal malpractice attorney in Connecticut to best represent you.
The Process of Legal Malpractice
For a legal malpractice claim, the first step is to complete a notice of intent to sue and mail it to your former attorney. Connecticut General Statutes § 52-190a mandates this. There is a 90 day waiting period before a suit can be filed. (CGS 52-190a(c)) The notice must provide "a detailed written statement of the acts or omissions necessary to constitute an action of negligence under sections 52-102b and 52-572g." There is a 90 day period for filing after the notice is sent to the attorney (CGS 52-190a(c)). This is not the Statue of Limitations, which runs from the date of delivery of the representation – it is a waiting period, but practitioners recommend that the Notice of Intent be sent as soon as possible. For an attorney, 120 days are allowed. The statute also requires a Certificate of Good Faith to be filed.
Then, you file the Complaint. This is the pleading that initiates the lawsuit. The complaint must state the factual allegations and legal claims against the attorney. Initially, the named parties are both the Attorney and their Firm. The attorney is entitled to seek SECURITY FOR FEES. CGS 52-251a. The defendant will normally want to file a motion to dismiss. This is extremely expensive for the plaintiff. It must also be done within 60 days of the commencement of the action. (CGS 52-259b(c)).
After an answer is filed or a motion to dismiss is decided in favor of the plaintiff, it will be time to conduct formal discovery. This includes interrogatories (written questions), requests for production of documents (to identify relevant documents and obtain production), requests for admissions (to narrow the issues), depositions (of clients, attorneys and office staff) and dates for expert disclosures.
It is at this point that most CT legal malpractice claims fall apart. Defendants’ counsel will argue that the actor-malpractice attorney committed no error, and that a jury could easily have found them not guilty. Experts are not allowed to opine that the attorney was guilty of malpractice. they are allowed to outline the facts – show the errors and the harm and then opine that perhaps the jury on the criminal case might have been persuaded, but for the careless acts/omissions.
Experts for both sides will render an expert report. Mediation may occur. Sometimes the defense makes an offer before depositions and sometimes after. Negotiation will continue through the discovery period. A trial date will be set. If a plaintiff has no expert, they are unlikely to win. If they have one expert, they are unlikely to win. They rarely have two experts. They must have two experts in almost every case to have a chance. The outcome for plaintiff typically comes down to which side of the courthouse the case is tried on.
Typical Outcomes of Malpractice
Common Outcomes of Legal Malpractice Cases
As with many types of cases, when an Attorney malpractice case is commenced, there are several possible outcomes. The case may be settled, i.e. a monetary payment made in exchange for a release of any claim against the offending Attorney; or it may be tried either to a jury or to the Court to determine damages. Also, when there is an Attorney found to have committed an unethical offense, he can be sued for malpractice, and also face sanctions from the Supreme Court Committee on Professional Standards, the disciplinary body most often called upon to investigate and discipline Attorneys who have committed unethical acts. These orders , while not binding on the Court in the malpractice action, nevertheless almost always become the basis for sanctions against the Attorney in the malpractice action, usually to the extent that the Attorney is found to have committed an ethical violation. In general terms, malpractice damages must always be proven with reasonable certainty. Where a client seeks to claim the benefit of a contingent fee, there must be proof that the case was in fact ultimately won. Additionally, there can be no psychic damages, and damages cannot be presumed. All damages must be proven in a reliable manner.
How to Safeguard Against Legal Malpractice
One way to safeguard oneself from being a victim of legal malpractice is to be an active participant in your case and to establish an open line of communication with your attorney. Ensure that you know your role in the case and are involved in the process. In addition, try to be involved as early as possible during the legal process. This may include ensuring that your attorney is aware of any deadlines in your case or concerns you have regarding your case. Rather than solely relying on your attorney to keep you in the loop or update you on the status of your case, ensure that you take an active role in the case and in communicating with your attorney. Schedule regular updates on the case to address any issues you have and so that you are informed on the status of your case. Research attorneys before you hire them. Look at their online reviews on Google, Yelp, and other or try to find other prior clients who are willing to tell you about their experience with the attorney or review the attorney’s website to find client testimonials. There are no guarantees that by following the above advice that you will avoid being a victim of legal malpractice. However, being proactive and maintaining an open line of communication with your attorney can help you in avoiding being a victim of legal malpractice.
Questions and Answers
Q: How do I know if I have a legal malpractice case?
A: Whether you have a case depends on whether your attorney committed malpractice or not. To measure that, you need to retain an experienced Connecticut legal malpractice attorney who can assess all of the facts and circumstances involved in your case. The attorney will be able to determine if the legal malpractice caused you any damage and whether that damage was so severe that your case runs the risk of falling below the threshold needed to collect compensation.
Q: Is there an attorney fee for a potential legal malpractice case?
A: In the vast majority of cases the Connecticut legal malpractice attorney will work on a contingency fee basis. This means that the attorney will not charge any legal fees unless the case is successful and a settlement or court judgment is obtained.
Q: Do I have a claim against my attorney?
A: If you were the victim of legal malpractice , then yes you likely have a claim against the attorney who committed the acts of legal malpractice against you. However, every potential legal malpractice case is different so it is vital that you obtain a consultation with a qualified Connecticut legal malpractice attorney.
Q: Do I have to sue my attorney?
A: The Connecticut legal malpractice attorney will be able to address that issue for you based on all of the facts and circumstances of your case.
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