Recognizing Legal Malpractice
Legal malpractice sounds ominous. However, for the vast majority of attorneys in San Diego it should not be an issue. There are many specific situations in which it may occur. A simple mistake does not constitute legal malpractice. Legal malpractice would involve the clear and blatant neglect of a law that ends in a financial loss or claim against the client.
For example, John is in a car accident with a person who is intoxicated. John’s attorney files the lawsuit against the wrong individual, the intoxicated driver. Although this was an emotional case and resulted in a claim and money for John, the attorney filed the case against a person that was not the correct individual. The intoxicated driver was not held accountable.
This is just one example of many possible legal malpractice cases. Legal malpractice is rare. Legal malpractice lawsuits are also quite rare. Only about 5% to 10% of the thousands of legal malpractice claims that are filed per year will result in a lawsuit . This means that the vast majority of clients find themselves satisfied with the service that they received from their legal counsel.
Sometimes legal malpractice occurs during a real estate closing. It is not an outlandish occurrence for attorneys to miss the deadlines for real estate closings or oversight of crucial details. Such errors could lead to unintended loss of finances for the client.
It is the attorney’s responsibility to keep the client well informed. Clients have a right to reject the current legal team and hire a different attorney. If you do not feel like your attorney is communicating with you or has missed the deadline that could be crucial to your case, then you can go over their head. Talk to the head attorney or the partners of the firm if it is a large one.
If communication continues to be lacking or if your attorney continues to make errors or terrible mistakes, you can seek out legal representation where you can file and win legal malpractice. This is particularly common if there is a huge loss involved.
When to Engage a Legal Malpractice Lawyer
Before hiring an attorney to take on your case, it is important to make sure that you have a valid case. The following are three signs that you should at least consult with a legal malpractice attorney:
1.) When you believe you have a valid claim against the attorney:
If you believe that your attorney did not provide competent representation in your case, you may have a claim for legal malpractice. As previously mentioned, legal malpractice occurs when the law firm handles a case in a manner that falls below the standard practiced by other lawyers. For example, if your attorney decides to go to trial even though she failed to properly conduct discovery, or to pursue a particular defense despite not fully advising you on the consequences of asserting that defense, then you might have a legal malpractice case. Ascertaining whether you have a viable legal malpractice case requires a thorough consultation with an attorney who specializes in such litigation.
2.) When you believe you were injured by the legal malpractice:
Normally when a legal malpractice suit is filed, the client has suffered a significant loss. For example, if the underlying case was worth $500,000 but was plead wrong, then the damages could be substantial. In some situations, the client suffers no actual monetary loss and yet still believes the attorney was wrong. In such a situation it may be wise to seek a consultation with a legal malpractice attorney. The statute of limitations can often be complicated when more than one action is involved. Sometimes the statute may have run on your underlying case, or on the legal malpractice itself, but at least talking to a specialist will empower you with knowledge that yes, even if you have no actual injury, you still might have a case worth bringing. This is particularly true where the potential legal malpractice is fairly new, and you may have time for it to ripen into a cause of action.
3.) When you have suffered significant emotional distress:
There are some clients who have had to endure any number of negative ramifications from having to deal with the legal representation of the first attorney. When you have suffered negative impacts such as the fear of going to court, the loss of friendships, loss of sleep, mental distress, anguish, embarrassment, ridicule, etc from the actions (or inaction) of the attorney, it is important to see an attorney to calculate those damages. You may not have real compensatory damages, but you may have consequential "special" damages that are more difficult to put your finger on. These types of damages can be harder to find because they are not tangible.
What to Seek in a San Diego Legal Malpractice Attorney
When in search of the right legal malpractice attorney, San Diego residents should look for several key qualities and a solid track record. First and foremost, you want your potential attorney to have strong experience representing clients who have suffered from legal malpractice. You can generally find this out by conducting an internet search for reviews, testimonials, and online ratings for several San Diego legal malpractice attorneys, particularly when reviewing their official websites.
Another important factor is whether or not a potential attorney is board-certified in Civil Trial Advocacy, a designation that’s given only to lawyers who have passed a rigorous test on trial advocacy and malpractice laws as well as having substantial experience. Past case results are also an important consideration. An attorney who has been successful in getting a settlement or judgment on behalf of legal malpractice clients will likely produce great results for you as well.
Finally, it is very important to find an attorney who is responsive to client inquiries. A legal malpractice case will not be won without thorough communication between you and your lawyer. You should also look for an attorney with local knowledge, including the norms, trends, and customs of the San Diego legal community, because it is of the utmost importance that they know how to communicate with the other involved attorneys, judges, and juries.
How a Legal Malpractice Claim Works
Deciding whether legal malpractice has occurred and determining if a legal malpractice claim warrants filing in San Diego can be difficult and extremely frustrating. If you feel the need to file a claim for legal malpractice, the first step is to meet with a competent legal malpractice attorney in San Diego. The San Diego legal malpractice lawyer will then research the issue at hand and advise you on whether or not you have a legal malpractice matter worth pursuing in an appropriate form. If it is determined at this stage that the legal malpractice matter is worth pursuing, the legal malpractice attorney will seek to put together the documentation and evidence necessary to support a legal malpractice case. Filing a legal malpractice claim involves the filing of a civil lawsuit against the attorney or law firm believed to be responsible for the alleged legal malpractice. This lawsuit is usually filed in the state in which the legal malpractice occurred. It is also very important that the legal malpractice lawsuit be filed within the correct statute of limitations. Each state has a statute of limitations related to legal malpractice claims. Failure to file a legal malpractice claim in the appropriate time frame means that the legal malpractice claim cannot be pursued. In many legal malpractice claims, the injured party lost out on the ability to pursue their original legal claim. Proving this loss will almost always become a major component of the proof needed to pursue a legal malpractice claim. If the original legal claim was not a strong case or a case that could be won, then the legal malpractice claim may not prove to have validity. As part of the process of filing a legal malpractice claim, the injured party must prove that the attorney or law firm involved violated a duty of care owed to the injured party. If the attorney or law firm did violate their duty of care, then it must also be proven that the legal malpractice caused actual losses to the injured party. How much in damages are you entitled to recover if you were a victim of legal malpractice? You may be entitled to the recovery of any directly related legal fees paid as well as other actual damages attributable to the malpractice through the course of the legal malpractice claim.
The Difficulty in Proving Legal Malpractice
One significant area of legal malpractice that matters to us only in a legal field is the need to show actual damages. A client may well have vindicated all of her rights through a legal decision and still complain of damages. Thus, winning the case without damages may preclude an action for legal malpractice.
An example is a defense of debtor where the legal limit on collection was exceeded by foreclosure action and the foreclosure action was successful. The creditor wins. Yet, the client is out the legal fees he expended to defend against the legal malpractice. We are unaware of any law which will use quantum meruit to retrieve these fees on a legal malpractice theory when the final legal decision exonerates the defendant from the action.
A case just came to us where two attorneys shielded themselves from fees by removing the action to Federal Court. Once in Federal court , they filed a fee petition and lobbied it voraciously, even to the point of telling the judge that their client would have come to San Diego, but for the long trip. (Now, as a general rule, we will go to the client, and have traveled to places like the Pacific Northwest, Florida, and Pennsylvania, etc when the client can’t easily come here. Also, there is a difference in the hourly rate we will charge for travel to those more distant places as they are of longer duration.) Here, trying to prove damages when there is no way to test the credibility of the fee arguments is a difficult procedural hurdle for clients to face.
The Role of a Legal Malpractice Lawyer
If you are thinking about moving forward with your legal malpractice case in San Diego, you will need to partner with an attorney who can represent you and advocate for you throughout the entire process. You need an experienced legal malpractice attorney in your corner. The California State Bar indicates that legal malpractice is a "tort that governs the relationships between: attorneys and their clients." This means that there is a standard of care that your attorney needed to meet, but if they didn’t live up to that standard, you may have a case for legal malpractice.
Specifically, a legal malpractice attorney may be able to help you by advising you about:
• Whether or not you have a case for legal malpractice • The seriousness of your case • Whether or not legal malpractice was committed by your attorney, or if other causes of action are more appropriate • Whether or not your legal malpractice case has merit • What steps you should take next to achieve a successful outcome in your case • How to best approach your legal representation options if you don’t already have an attorney
No matter the circumstances surrounding your case, a legal malpractice attorney may be able to guide you through the process, while giving your case the respect and attention needed to hopefully arrive at a successful outcome.
Why Choosing a Local Lawyer is Advantageous
The Benefits of Hiring a Local Legal Malpractice Attorney in San Diego
For individuals living in San Diego, the decision to file a legal malpractice claim is not an easy one to make. It involves not only coming to terms with the violation of your hard-won trust, but also involves navigating a highly complex legal process that you may not be familiar with. When you decide to pursue a legal malpractice claim, it’s generally recommended that you hire an experienced attorney to represent you. Since legal malpractice is a specific area of personal injury law, it’s advisable to seek an attorney with plenty of experience in this niche specialty.
However, a lack of expertise isn’t the only factor to consider when determining if a legal malpractice attorney is the right fit for you. Living in San Diego, you are fortunate to have access to a wide range of experienced legal malpractice attorneys. Since these attorneys are based in San Diego , they have a thorough understanding of California and local laws, court proceedings, and legal processes. Because of their local familiarity, they are also able to offer you an unusually high level of personal service and trust.
In contrast, many large law firms will hire a legal malpractice attorney who is not based in San Diego. Instead, the attorney may be located in another state or city, making it less convenient for them to meet in person and less familiar with local courts. This results in both inconvenience and a lack of familiarity with how the local court system operates. In legal malpractice cases, having someone with extensive local experience can make all the difference in the outcome of your case.
When you contact a lawyer regarding representation by phone, make sure to inform them that you have a legal malpractice case that is being handled by your current attorney. This will save you time in the event that you end up hiring another firm.