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Negligent Security Seminar | March 2015

Florida personal injury lawyers



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    The Ultimate Guide to Legal Malpractice

    Proving a legal malpractice claim against a prior lawyer is complex and requires expert legal advice. This guide aims to help you better decide whether to pursue a legal malpractice claim to seek compensation. Working with an experienced team with a proven track record of winning legal malpractice cases is one of the best things you can do to increase your chances of success. 

    When someone is injured or killed due to negligence, they or their families typically hire a lawyer to represent their case and try to win damages to pay for medical bills, property damage, long-term care, pain and suffering, disability, lost income, and other associated costs. 

    If someone falls and is hurt on a slippery surface or due to other unsafe conditions, it’s unlikely the facility or owner meant to injure them. Though malicious intent does happen in some instances, it’s the exception, not the rule. 

    But that doesn’t meet they shouldn’t be liable for injuries due to negligence related to poor safety standards, lack of appropriate security, manufacturer defects, etc. If there is a duty of care, it’s their responsibility to deliver appropriate care. 

    The same goes for attorneys who represent clients. A lawyer can commit legal malpractice in various ways, the same as a doctor treating patients. Attorneys commit malpractice by mistake (negligence) that can adversely impact the outcome of your case. Sometimes legal malpractice can occur because of a conflict of interest, a lack of knowledge of the law or facts, or an error in judgment.

     If you feel like you or someone you love has been represented poorly or malpractice occurred, this guide will help you know what actions you should take and what sort of recourse you have. Here is your ultimate legal malpractice guide. 

    How Legal Malpractice Happens

    Hiring a lawyer is a big decision. People often put their trust and livelihoods in their attorney’s hands. For example, after a car accident that leaves a victim permanently disabled, they and their family hire lawyers to seek damages to cover expenses and replace lost income. Legal malpractice occurs when a lawyer fails to properly represent a client. 

    Lawyers occupy a position of trust in the public. Just like when you go to the doctor believing they will do their best to treat your medical issues, people turn to lawyers when they need help navigating complex legal cases. You are hiring a lawyer based upon their expertise since the law is very complex and becoming a lawyer requires years of education and training, as well as experience in the profession.  Unfortunately, in many areas there are so many lawyers, many of whom lack the skills necessary to take on complex cases. Malpractice often happens when an inexperienced or incompetent attorney takes on a case they have no experience handling.  Sometimes lawyers take on cases in areas of the law where they do not have expertise, or in other states where they may not know the law. When that happens, it increases the chances clients are harmed or misrepresented. 

    Unfortunately, people don’t always get the representation they deserve. In high-stakes legal cases, small mistakes can have outsized effects. According to the American Bar Association, from 2008 to 2001:

    • 30% of malpractice claims were the result of purported administrative errors
    • 45% of malpractice claims were tied to significant errors
    • 10% of malpractice claims were intentional

    As you can see, while intentional errors happen, they are the minority of legal malpractice claims. In most instances, mistakes led to lawsuits. 

    Lawyers (Should) Have Legal Malpractice Insurance for a Reason

    Lawyers carry legal malpractice insurance to protect themselves and their firms against malpractice claims. 

    While having insurance is a smart business move, it underscores the frequency at which malpractice occurs. This isn’t to say that every lawyer who makes a mistake is evil. However, the law is designed to protect the people lawyers represent. 

    Firms are responsible for the mistakes its lawyers make. When an attorney does something inappropriate, it breaches the contract with the client. A good example of this is failing to act or understand statutes of limitations. If a lawyer fails to protect a case and misses the statute of limitations, it may be cause for a legal malpractice claim. 

    Regardless of intent, people who suffer harm from legal malpractice deserve justice. Mistakes made by lawyers representing injury victims can cost millions of dollars in lost opportunities or recovery in a meritorious case.

    These are just a few of the ways legal malpractice victims suffer, and they underscore how essential it is to work with an attorney who has experience pursuing malpractice claims. 

    Some Common Legal Malpractice Claims

    Your lawyer is your legal resource when you’re pursuing a personal injury claim or any other type of legal case. They are the go-between you and the legal system.  We reasonably rely on lawyers to handle our cases with professionalism and skill.  Sometimes there are judgment calls, but sometimes the lawyers make mistakes or exercise judgment that is not based on knowledge, skill or expertise.

    In many cases, legal issues are incredibly complex. A win or a loss sometimes hinges on small details in the law that only expert lawyers know. Other times, malpractice gets in the way of a successful claim or court outcome. 

    Here are some of the most common legal malpractice claims each year.

    1. Administrative Errors

      Lawsuits, and especially personal injury cases, are full of deadlines and other administrative requirements. For instance, victims of injuries on cruise ships generally have only a year from the time of their injury to file a claim. If they wait for longer, they lose the opportunity to pursue damages. If an attorney doesn’t know to (or simply forgets to) file the lawsuit in the proper court in the proper time, it can potentially damage or destroy your case. 

    2. Conflicts of Interest

      The law prohibits lawyers from representing clients when there is a clear conflict of interest. A good example of this is if a lawyer offers to represent an injury victim when they also represent (or represented in the past) the company or defendant the victim is filing a claim against. The attorney’s interests could get in the way of fair dealings and a favorable outcome for the victim. Lawyers must reveal any actual or potential conflicts of interest to new clients. When something gets in the way, the attorney should refer the client to someone else or decline their business. 

    3. Misappropriation

      Any money you pay to an attorney must be used for purposes directly related to your case. Unfortunately, some law firms muddy the waters when it comes to finances. A small firm that is struggling may deal with temptations to use your retainer to stay afloat by paying costs related to other cases. Misusing funds represents gross legal malpractice and robs your case of the resources it deserves. It’s essentially stealing, and you likely have a solid malpractice claim on your hands if you choose to pursue it. In most personal injury cases, the law firms are advancing the expenses of the case, so this is often not a problem. What is seen frequently in personal injury cases is where the law firm deposits the settlement check but keeps the funds or fails to honestly advise the client of the full amount. Also, any funds in a trust account (separate from the firm’s operating accounts) must never be touched unless it is being disbursed with proper authority and cannot be commingled with the firm or lawyer’s own funds.

    4. Mishandling Settlements

      In personal injury claims, lawyers often negotiate settlements to keep cases out of court and save everyone time. However, your attorney must act in your best interests, and they can’t make final decisions about settlements without your agreement. Sometimes, lawyers accept or reject settlement offers without consulting their clients. This is a major misstep and is typically tantamount to legal malpractice. Especially if the client stood to win much more than they did had the attorney not accepted the offer. Usually, industry standards and precedents govern settlement amounts, and any settlement you receive should be in line with other similar cases. 

    5. Poor Communication

      Some people file malpractice claims when their lawyer isn’t available or communicates so poorly it feels like negligence. It’s fine if an attorney and their staff are busy, but issues arrive when repeated requests go unanswered. Lawyers have a responsibility to serve their clients, and that means communicating in a relatively fast manner. The same goes for communicating in a formal way that befits the profession and your relationship. 

    6. Betrayal of Confidence

      The relationship between a lawyer and their client is privileged. They should never divulge things you tell them in confidence or discuss the intimate details of your case with others. A lawyer speaking out of turn can jeopardize your entire case. 

    These are some, but not all, of the common reasons for legal malpractice lawsuits. If you feel like your situation meets the above criteria, talk to a different attorney. Find a lawyer specializing in legal malpractice cases to see whether you have a case. 

    What To Do in a Legal Malpractice Case

    What should you do once things turn sour with your attorney? It’s hard to decide to pursue a legal malpractice claim, especially for victims who aren’t familiar with the legal system. A lawyer may try to convince you that they did everything correctly, so who’s to know that you were victimized by the situation and your legal representation? Here are some of the common signs of legal malpractice to help you know when it’s time to consider other options. 

    Here’s what you should do when you feel like you’ve been mistreated by your attorney, or the relationship goes south. 

    Step 1 – Continue Outreach

    Keep communicating with your attorney to ask why things happened the way they did. Ask about any mistakes made or deadlines missed. Inquire about the reasons for mistakes, loss of funds, a settlement decision without your approval, or anything else you feel should not have happened.

    Your lawyer should respond. If they don’t, however, you should keep writing them regularly. Don’t harass them with daily communication but keep trying to get explanations and answers to your questions. 

    Step 2 – Send a Formal Letter

    If your attorney repeatedly fails to respond or offer appropriate reasons for failures in your case, you should send a formal letter letting them know that you hold them responsible. If they aren’t responding, let them know that you realize they’re not responding. Tell them that you are formally requesting action on your case.

    Step 3 – Keep Records

    Don’t delete emails and keep copies of any written correspondence, phone calls, texts, or in-person discussions between you and your legal team. The same goes for any bills and other expenses related to your case. 

    Step 4 – Talk to a Different Attorney

    There aren’t any rules saying you can’t talk to another lawyer to find out if what you’re experiencing is normal. You probably want to keep discussions with other attorneys close to the chest until you feel like you have a good handle on the situation and whether you want to pursue a legal malpractice claim.

    It’s easy for inexperienced people to trust everything their lawyer says. If it’s someone’s first time filing a personal injury claim, for instance, how do they know what good communication is or if missing a deadline is a problem? They usually don’t.

    If you feel like something’s off, you should ask for a second opinion. 

    Step 5 – Stop Working with the Lawyer

    Talking to a legal malpractice specialist will help you know when it’s time to terminate your relationship with your attorney. This is sometimes difficult to manage, but a good lawyer can coach you through what to say and do. 

    Ultimately, you’re going to need to fire your lawyer. It doesn’t make sense to pursue a malpractice suit against someone you’re still paying to work for you. 

    Step 6 – Pursue Your Claim

    Once the client-attorney relationship is over, it’s time to pursue your claim. Your new malpractice lawyer will help you gather evidence and start building your case. They need to prove that the lawyer made mistakes material to the outcome of your case. Intent is important, but it’s not the only component in your case. 

    Proving Legal Malpractice

    Proving legal malpractice isn’t easy. Sometimes people lose cases or judges dismiss claims based on the merits. Nothing the attorney could have done would change the outcome. 

    Other times, however, mistakes made by an attorney have a significant impact on what happens. It can cost you and your family compensation, time, and more. To prove a malpractice case, you need to do the following:

    • Duty of Care – Demonstrate that the lawyer and any employees had a duty of care. This is often demonstrated by a client or employment contract. 
    • Breach of Duty of Care – Show that the legal team made mistakes that breached their duty of care. This can include failing to mail out required correspondence, refusing to communicate with clients and other parties, divulging confidential material, etc. 
    • Causation – The breach of their duty of care harmed the victims. Typically, this comes in the form of mistakes or intentional harm impacting your case.  In legal malpractice cases there is a requirement of proving the “case within the case”. That is, you need to show that you would have succeeded in the underlying case had the lawyer acted appropriately.  Even if you prove that the lawyer committed legal malpractice, you must still show that it would have changed the outcome.
    • Resulting Damages – Legal malpractice victims must demonstrate that they suffered directly from the breach of duty of care and that their suffering resulted in financial loss. For example, bungling a personal injury case could mean losing out on a lifetime of payments and financial support after an injury leaves a victim with a long-term disability that makes it impossible to work and earn income.

    If your situation meets these four criteria, you have a good chance of winning a legal malpractice case. 

    Work with Proven Legal Malpractice Leaders

    Choosing the best attorney to handle your case from the outset is always the best choice. However, not everyone is experienced at selecting attorneys, and some lawyers fail to disclose gaps in experience when they take on new clients. When you suspect legal malpractice, it’s essential to work with a law firm that has legal malpractice case experience.

    At Leighton Law, for example, we recently won a client a $1,000,000 settlement for legal malpractice after a woman was severely injured in a serious truck accident in a nearby state. The family, with good intentions, hired a lawyer who knew the family. However, the Florida-based attorney incorrectly assumed that Florida’s statute of limitations mirrored  the one in the state where the case had to be filed.  Florida’s statute of limitations is four years, but the other state’s is just one year. Because he never checked on the specifics of the state where the case occurred, the one-year statute passed and the defendant’s insurance company was off the hook.  There was no case left top bring at that point. Case over.

    The client was referred to John Leighton at Leighton Law and he pursued a case against the attorney for legal malpractice. He recovered the full amount of the offending attorney’s liability insurance after taking the offending lawyer’s deposition. The size of the settlement underscores the significance of hiring the right attorney with proper experience.

    Leighton Law is a personal injury law firm that aggressively represents clients who have been injured and the families of those killed. Our team has trial and settlement experience handling very complex cases across the United States. We offer free consultations where you can discuss your situation and make appropriate plans to file a claim against your attorney. Working with the right legal team can help you or a loved one get your case back on track and hold people responsible for delays, mistakes, and other problems tied to your case.

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