Why Is it Hard to Find a Lawyer?
If you have done any research about legal malpractice, you’re probably already aware of the fact that most law firms are very reluctant to a bring a legal malpractice lawsuit against another practicing lawyer, particularly when the lawyer practices in the same town. This is a part of the reason that we end up representing clients all over the United States, but primarily in states throughout the Southern and Southeastern United States. We have handled cases in over eighteen (18) states. If we are not licensed to practice law in your particular state, we will associate with a local lawyer and obtain what we call pro hac vice admission to practice law in your state. You will not have to pay any extra cost or expense for this service, we will compensate the local lawyer out of our contingency fee.
We recognize that it is never pleasant to sue a fellow lawyer, so we don’t take representing clients against lawyers lightly. The stress, difficulty and complications that result from an attorney’s malpractice or ethical violations can leave you with a feeling of distrust in lawyers and the legal system in general. While it is never pleasant to be involved in any lawsuit, we truly believe and expect that if our firm improperly handles a case for a client, we should make good on our mistake and try to make our client whole again. If we refuse to do so, we should be sued. Isn’t taking responsibility for your own actions and owning your mistakes part of being a responsible human?
Attorneys are different than other professionals. Generally, most people only hire an attorney once or twice during their lifetime and it is usually in a moment of personal crisis. Their clients expect them to work miracles; sometimes, the attorney can’t deliver. The hurt and angry client threatens to sue the attorney for malpractice for failing to win their case. The practice of law can be very complex and mistakes can be made that have devastating consequences to good people. A lawyer can also just lose a case through no fault of their own. It happens. Juries can make bad decisions and get it wrong for lots of reasons. You should know that just because your lawyer did not get you a good result it doesn’t necessarily or automatically mean that he or she committed legal malpractice. However, you would shocked at how often a lawyer just screws up and does in fact commit malpractice. So, the question becomes, did the attorney commit legal malpractice? What is legal malpractice? And how do you know if you have a case?
What is Legal Malpractice?
Legal malpractice occurs when your attorney makes a mistake in the handling of your case that a reasonably competent attorney would not have made—and the mistake results in damage to you. Simply stated, your attorney commits legal malpractice when he or she did not provide you with the representation that a reasonably prudent attorney would have provided in your case.
As with medical malpractice, legal malpractice is just a type of negligence. However, Courts hold attorneys to a higher standard of care because of their professional responsibilities. They are very much like doctors in the sense that most have large egos and fight like hell when they get sued by a client and rarely admit that they might have screwed up a client’s case. This is why you need a tenacious and experienced lawyer to fight for you and to hold these lawyers accountable. A few bad apples can tarnish the reputation of all lawyers.
In order to win your legal malpractice case, you must be able to show or prove:
- The attorney owed you a duty. If you formally hired the attorney, he or she had a legal duty to act in your best interest in a competent manner. The fee agreement or retainer agreement you signed with the attorney for legal services with be great proof of this relationship and of this duty;
- The attorney breached that duty in some way. Losing a case is not necessarily a breach of duty;
- The breach was the cause of the harm you suffered; and
- You suffered some kind of financial or other injury as a direct result of your attorney’s malpractice.
In order to successfully bring a claim for legal malpractice against a lawyer, you will have to prove that the lawyer’s actions (or inaction) fell below the required standard of practice for attorneys in that area. A client must generally prove a “breach of the standard of care” through expert testimony, i.e., another lawyer. In other words, we will have to show that a reasonably prudent and competent lawyer would not have done what your lawyer did or would have done something that your lawyer failed to do and that these failures actually caused you damage. These types of cases can be very complicated, frustrating and difficult.
We have found that the most difficult thing to prove in a legal malpractice case is that the attorney’s negligence caused your financial harm or loss. There are no guarantees in the law. An attorney can do everything right, and you can still lose your case. Other times, a lawyer can do something wrong, but you could still win.
This element of the case we refer to as proving or showing causation—that, but for the attorney’s negligent actions, there would have been a different outcome in your case. This puts you and your new attorney in the difficult position of proving both the malpractice claim and the underlying case.
The classic example is the negligent attorney who fails to file a case before the statute of limitations expires. Because of that negligence, your case will be dismissed because it was not timely filed. This is a serious error, but if you were going to lose your underlying case anyway, the negligence of your lawyer did not really harm you because you were not going to win your case in any event, even if the lawsuit was timely filed. To give you a more specific example, let us assume that the reason you hired your lawyer was because you were involved in an automobile accident and that your lawyer waited too long and filed your lawsuit after the expiration of the statute of limitations. This is clearly legal malpractice. However, do you have any real damages? If you were at fault and blew through a red light and caused the automobile accident, you were probably going to lose your lawsuit and the lawyer’s failures did not really cause you harm. However, if you were sitting at a light and you were hit from behind by a FedEx truck and seriously injured, you would have most likely won your lawsuit, if your lawyer had not committed malpractice. So, under those facts, you have a very good legal malpractice case because you can prove both legal malpractice and damages.
Litigation Malpractice
Most legal malpractice claims we see involve an attorney doing something improper while handling a lawsuit that was filed in (or was supposed to be filed) court on your behalf. Like the example above, if you were injured in an automobile accident and hired an attorney to file a lawsuit against the responsible party, we refer to this type of case as “litigation malpractice” simply because the underlying case involved a case being litigated in Court.
From the above example, you can see that most Litigation Malpractice cases are actually involve proving a “case within a case.” This means, we must first learn if your attorney committed legal malpractice and then we must evaluate what you would have recovered in the “underlying case” had the lawyer not screwed up.
Transactional Malpractice
Litigation malpractice is not the only way an attorney can commit malpractice. We routinely get retained by individuals, corporations, and small businesses that hired a lawyer to give them legal advice about some sort of business transaction. If the lawyer incorrectly handles the transaction or simply gives bad legal advice that results in you sustaining damage or financial harm, you might a have a good legal malpractice case. We refer to this type of case as “transaction malpractice” simply because the underlying matter involved some sort of transaction and not a lawsuit pending in Court. Some of the largest recoveries we have ever obtained on behalf of clients have involved large transactions that an attorney screwed up for a small business owner that resulted in the business taking some sort of disastrous financial loss.
Commons Mistakes Lawyer Make
Failure to timely file a lawsuit can be one of many ways that lawyers commit legal malpractice. All states have statutes of limitations that apply to personal injury cases, breach of contract cases, wrongful death cases, breach of fiduciary duty cases, medical malpractice cases, and basically all other types of cases that get filed in Court. The “Statute of Limitations” (“SOL”) is a term in the law that simply means the amount of time a person has to bring a lawsuit. If you wait too long to sue and the SOL has expired, the lawsuit will be dismissed by the judge.
Legal malpractice cases have a SOL as well. Each state has its own set of rules and its own SOL dictating how long you have to sue your lawyer for legal malpractice. It can get complicated trying to figure out exactly when the SOL started in a legal malpractice case and each state law is different on this subject. For example, in Tennessee, a client has one (1) year to sue his or her lawyer and the one-year period starts to “run” when the client “knew or should have known” that the lawyer committed legal malpractice. If your lawyer sends you a letter that tells you that he or she committed legal malpractice and you wait a one (1) year and one (1) day to sue for legal malpractice, in Tennessee, you will lose your case and a judge will dismiss the lawsuit because the SOL has expired before you filed the lawsuit. So, timely filing a lawsuit is critical to brining a successful legal malpractice lawsuit.
To make matters more complicated, many states have various exceptions that “suspend” or “toll” the running of the SOL. For example, if your lawyer “fraudulently concealed” his or her malpractice from you, the SOL will not start to run and you will get one (1) year from the date that you first learned about the malpractice to file a lawsuit. In addition, a lawyer could become subject to punitive damages for trying to conceal or cover up a legal malpractice claim.
There are many, many ways that attorneys commit legal malpractice. Allowing the SOL to expire is just one is just one example. Here are some of the most common Legal Malpractice mistakes/issues we see:
- Missing Statutes of Limitation – if your attorney failed to file your case on time, you can lose your claim entirely, costing you your entire recovery on your claim.
- Missing Other Deadlines – if your attorney failed to meet other deadlines in a case, you may end up with a bad result and may be entitled to recover from your attorney.
- Conflict of Interest – if your attorney improperly represents someone with whom you have a conflict, it may have an adverse impact your case that entitles you to recovery.
- Ethics Violations or Intentional Wrongdoing – if your attorney commits a professional ethical violation, such as disclosing privileged and confidential information to an opposing party, you may be entitled to recovery.
- Incompetence – if your attorney failed to provide you with the standard of care of practicing attorneys in Tennessee, you may be entitled to recovery if your attorney’s incompetence caused you harm.
- Stealing Client Funds – if your attorney comingles his or her money with a client’s money or even just steals a client’s money, this is not only criminal but would constitute legal malpractice and you would most likely be able to recover punitive damages for this misconduct.
Why would I hire an out-of-state lawyer to help me?
You certainly have ever right to hire a lawyer of your choosing, regardless of where they are located. We believe you will find it difficult to locate an attorney in your town willing bring a lawsuit against another fellow attorney that they see routinely. We are a little bit different in this regard. We believe that most people only hire a lawyer once or twice in their entire lifetime and it’s because they are presented with a very difficult situation or problem. It is our philosophy that when an attorney screws up and compounds the problem, he or she should answer for their negligence just like any other professional.
As a result of our willingness to hold other lawyers accountable for their actions, we have, over the years, been called upon to represent numerous individuals and companies throughout the United States in pursing legal malpractice claims. Our legal malpractice law firm has a very good success rate of making these negligent lawyers do the right thing. This attitude does not get us invited to many holiday parties but we sleep just fine at night knowing we are helping good folks and small business owners that have been harmed by negligent lawyers.
We understand that the practice of law can be very complex and mistakes can be made that have devastating consequences to good people. A lawyer can also just lose a case through no fault of their own. It happens. Juries can make bad decisions and get it wrong for lots of reasons. Just because your lawyer did not get you a good result doesn’t necessarily or automatically mean that he or she committed legal malpractice. However, we are always shocked at some of the things that lawyers do or don’t do that have just absolutely devasting consequences to their clients and this gives all lawyers a bad name. Someone has to stand up to these bad attorneys and help folks. This is what we have chosen to focus our practice on and have been doing so for almost thirty (30) years.
If you have experienced any of these issues or others that hurt your case or caused your case to be thrown out of court, you very well might have a Legal Malpractice claim. We prepare every case as if it were going to trial, and we are not afraid to go to trial. We will give you our 110% effort to hold negligent attorneys accountable.
If you think you have a legal malpractice claim, call us for a consultation or use our Online Case Evaluation tool to determine if you have a claim. We are based in Memphis and Nashville, Tennessee but have handled cases in over eighteen (18) different states. We will review your situation and give you an honest assessment of your potential case free of charge. To see how we usually charge for handling legal malpractice cases, please visit the Legal Fees section of our site.