Picking the Right Attorney for Legal Malpractice Suits

What is Legal Malpractice

Legal malpractice claims arise when a lawyer fails to provide adequate legal representation to their clients, resulting in harm or damage to the client. This could include a lawyer who misses a crucial court deadline, fails to file an appeal, or makes an error that leads to a poor outcome for the client. In New York, a legal malpractice claim has three elements: the existence of an attorney-client relationship, an act or omission by the lawyer that constituted professional negligence, and damages caused by the negligence. The scope of a client’s case includes the facts that the attorney actually and reasonably foresees.
An attorney who represents a client in a civil case is under a duty to exercise reasonable care in carrying on the representation, with regard to the known facts and the law of the State. There are two forms of damages in legal malpractice cases: the loss of the underlying case, and the cost to remedy the attorney’s errors . Attorneys’ failure to timely comply with a statute of limitations can be the basis of a legal malpractice action. The question of the applicability of the saving provision of CPLR 208 to a foreign defendant may raise an issue of causation in a legal malpractice action. The statute "looks to a party’s residence at the time of the injury to fix the period of limitation. When the injury occurs in a foreign jurisdiction, CPLR 208 tolls the statute of limitations only if the injury is also suffered by a resident of this State."
Among the clauses that bar a malpractice claim are a clause that limits an attorney’s liability on a contingency agreement which gives the attorney a percentage of the recovery to be split among several attorneys and a clause by which the client agrees to limit the types of malpractice claims to those involving fraud or intent wrong.

When to Hire a Legal Malpractice Attorney

With a million lawyers out there, how do you know whether your case is a legal malpractice case or not? Well, the short answer is that no one is going to tell you, except for a select few of lawyers who actually do this kind of work. With that caveat, however, there are some signs you can look out for:

• Your case was completely mishandled – did your lawyer get the timetable wrong? Did he/she miss the statute of limitations?
• Your lawyer forgot to put in a claim for which you were entitled in a legal malpractice case (such as a Medicare Set Aside).
• Your lawyer didn’t try your case or file your appeal.
• Your settlement was delayed.
• The lawyer made errors in legal work, but did not tell you, and the error caused you damages.

These are just a few of the warning signs that you may need to speak with a legal malpractice lawyer.

How to Locate a Legal Malpractice Attorney

When it comes to selecting an attorney to represent you in a Legal Malpractice Claim, you have choices that you can make. Focus on someone with experience. Experience is key. After an attorney has represented clients in legal malpractice matters for a number of years they develop skills and knowledge that only come with time. The more cases an attorney has handled, the better suited they will be to identify potential issues with your case and choose the right course of action. Attorneys who have significant experience in cases similar to yours also can explain the likelihood of a favorable outcome. Even if you do not win your case, an experienced attorney can help ensure that you achieve the maximum compensation possible. It is all about specialization. Another thing you should consider when choosing an attorney to take your case is whether he or she specializes in legal malpractice litigation. Many practitioners dabble in this area, but that is a mistake because legal malpractice claims are very different from other types of lawsuits and will require an attorney with extensive expertise in the field to ensure that your rights are protected. Reputation is everything. Reputation is also vital when selecting an attorney for your legal malpractice case. Find out whether the attorney has won any professional awards for his or her work or has been given any accolades by peers or colleagues in the legal profession. Take note of how long the attorney has been practicing and whether he or she is affiliated with any professional organizations in the field. Additionally, examine the firm’s reputation in the legal community by checking reviews from online sources such as Glassdoor and Yelp. Reviews count. An easy way to gauge the abilities of an attorney you may be considering for your legal malpractice case is to read reviews from prior clients. Ask for references from former clients or look for testimonials on his or her website. A great reputation will not only provide you with peace of mind, but will also ensure that you receive the best possible representation for your case.

What to Anticipate in a Legal Malpractice Litigation

Some claimants will surprise their clients with their persistence and ardent support of the legal malpractice case, others will not. In either event the various stages of the case are laid out below.
The first preparation is a retainer agreement, which details the basis for the fee. It may be hourly, contingent or some hybrid. The formal name for this agreement is a retainer agreement, although many clients informally call it a "contract." The requirements to enter into a formal and written retainer agreement include ethical rules, confirming competent advice to speak with a lawyer, financial ability to pay a deposit for the work involved, available time and interest in taking on the matter, and being able to accommodate the client’s needs. All of these reasons speak to the insurance aspect, that there is liability incurred in the representation.
Once the retainer agreement is signed a paralegal or legal assistant may perform many of the preliminary tasks based upon the lawyers direction. This may include obtaining public records and records held by the client, requesting reports and other information from the legal malpractice defendant, taking affidavits from witnesses, etc. There will also be time spent dictating and reviewing the complaint and preparing the summons for the court, service of process and other procedural aspects. So far there has been no motion practice or litigation, but all of this activity must be accounted for in the retainer agreement and will be billed if hours are being paid, or deducted from the recovery if the case is on a contingent basis.
There is much more to come however with discovery, depositions, interrogatories, expert witnesses, examinations under oath, and motions. Ultimately, as in every lawsuit, there will be a motion for summary judgment. At that point the court will be asked to decide the case based upon the facts and the law, and that’s when the viability of the case become evident.

Common Pitfalls and Impediments to Legal Malpractice Suits

These Attorneys, try as they may, can delay and reduce ultimate payments by:
a) Gracious delays in litigation;
b) Full throated motions to dismiss (with citations of case law and codes) asking the Court to find that the plaintiff has no case at law; to dismiss the case with prejudice;
c) Counterclaims (yes, the Attorney sues back);
d) Discovery motions; and many others.
Most problematic for a plaintiff is the growing complexity of trial.
A trial may focus on a variety of issues, all of which must be proved, regardless of how dissimilar they are . For example in one trial a legal malpractice plaintiff must show the following:

• The underlying action was initially winnable;
• That Plaintiff win that case would have benefitted by it;
• That there were "missing files," which would have shown a successful strategy;
• If the case could be won, then what would have been recovered?

These points can be expanded upon, and arguments can be quickly complicated.
It’s not a good thing for a law firm to be served with a legal malpractice case, and they fight back hard. Plaintiffs must be ready, willing and able to face this type of challenge, or expect trouble.

Legal Malpractice Questions to Ask a Prospective Attorney

If you were burned by a bad lawyer, and are going to hire a new one to bring a legal malpractice case, consult with more than one. This is important because, just as when you were with the last lawyer, the lawyer can tell you most anything. With experience, you learn that what they say does not always have to be the truth. The second lawyer you’re meeting with will probably want to convince you that he should be your lawyer, and why the prior one was wrong. Accordingly, be careful about what you choose to believe.
The first and most relevant questions to ask are whether they have any history of pursuing legal malpractice cases other than their own. If they did not experience the losses that you did, do they appreciate what happened? Specific experience in this field may be the best way to identify a future winner. Questions that you should ask include the following:
• Do you have any experience suing lawyers for legal malpractice besides your own?
• When did you enter the field of legal malpractice (ask for a year)?
• Have you won most of the cases you’ve prosecuted?
• Do you publish any literature for other lawyers?
• Have you lectured other lawyers?
• Do you teach (and where)?
• Do you run any courses for new lawyers?
• Have you made speeches anywhere?
A good lawyer will probably not have all of the answers to all of the questions. But as time passes, a good impression will emerge.

The Significance of Prompt Action in Legal Malpractice

As with all actions, you need to act quickly if you believe you have a legal malpractice claim. Aside from having to file a Notice of Claim where the lawyer is a municipality, you have a very short time in which to bring suit. The statute of limitations for the action depends on the underlying claim. If it is a personal injury, labor law or wrongful eviction case it is 3 years. If it is most financial issues and wrongful eviction, it is 6 years . If it is a breach of contract, it is 6 years, but many attorneys believe it is 3 years. We believe that is wrong….but lawyers often get to decide what the law is and not always. We are seeing cases now where lawyers have failed to respond or missed a statute of limitations with a long delay after the case happened, and the statute work against the Plaintiff every time. They missed the chance to settle a strong case before they saw it. They are deprived of their day in court.