Posts in category: Legal Malpractice

Few things are as intimidating as taking legal action against a lawyer. However, if you hire an attorney and they act in a negligent manner, it can result in extensive damages, and you need to fight back. How? By filing a legal malpractice suit against them.

Proving legal malpractice isn’t easy, so you’ll need to be aware of what constitutes malpractice, and what evidence you’ll need to prove it.

Was It Just a Bad Job… or Actual Malpractice?

It’s important to know that being a “bad” lawyer doesn’t necessarily constitute legal malpractice. Let’s look at some of the common complaints that clients have against their attorneys, and whether they constitute malpractice.

Importantly, even if you don’t have a case for malpractice, you are not powerless. There are number of steps you can take if you are dissatisfied with your lawyer.

Here are some common complaints clients have about attorneys:

• My lawyer stopped working on my case: The longer your lawyer ignores your case, the more likely his or her inaction is to constitute malpractice. If your case isn’t being properly handled, you must take action quickly. Start by sending a certified letter expressing your concerns and requesting a meeting.
• My case was thrown out of court: If your case is thrown out of court because your attorney did no work, this may constitute malpractice. You will still need to prove that your lawyer’s mishandling of the case was the reason it was thrown out, however, and that the case could have been won if they had done their job.
• My attorney recommends settling for much less than originally estimated: Unfortunately, this does not constitute malpractice. It means that your lawyer likely overestimated the case’s value to encourage you to hire him/her. This is bad business, but not malpractice. You can minimize the chances of this happening by getting several estimates at the outset.
• My attorney settled without my authorization: This one is absolutely malpractice, because your lawyer must have your authorization before agreeing to a settlement. However, to seek damages in a malpractice case, you’ll need to prove that your attorney settled for much less than the case was worth.

Elements needed to Prove Legal Malpractice in Florida

If the signs of legal malpractice are piling up and you think that you may have a case, you will need to prove that your lawyer committed malpractice.

There are several elements your attorney will need to prove in order to win a malpractice case:

• Financial Loss: Actual financial losses that resulted from your attorney’s negligence must be proven. This requires records of all money spent on the case, and proof of the case’s worth.
• Duty: You will need to prove that your lawyer had a duty to you. This is usually stated in your contract or agreement.
• Breach of Duty: The most complicated element to prove is that your attorney acted in a negligent manner, and that this breached his or her duty to you. You must be able to prove that your lawyer did not meet what would reasonably expected of him or her in the circumstances, or that they acted in a way that was not in accordance with their responsibility to you. This may require an expert witness who can determine what should have been reasonably expected in your situation.
• Causation: You must prove that your attorney’s negligent actions caused the financial damages you suffered. For example, if your lawyer missed a deadline and your case was thrown out as a result, you must connect the missed deadline to the case’s dismissal.

The Importance of Collecting Evidence

To win your malpractice case, you should begin collecting evidence as soon as possible. Some evidence will be easier to attain if it is collected immediately. Also be aware that Florida’s statute of limitations for legal malpractice is two years.

Here are some of the evidence you should begin collecting:

• Expert Witness: A jury will determine whether your lawyer did not meet what would reasonably have been expected of them. An expert witness may be needed to accurately determine what reasonably could have been expected of an attorney representing your case, and effectively communicate this to the jury.

• Evidence of Communication: For an unresponsive lawyer, you’ll need evidence that you attempted to communicate with them, such as call logs. Also collect any information that was communicated to your attorney, as well as what he or she did with that information. Written records of communication (such as emails) are especially helpful in this regard.
• Evidence from Your Original Case: You’ll need to present the information about your previous case to prove that your lawyer engaged in negligent behavior. If you were able to retry your case with a new attorney who was more effective, this can also be used as evidence.

Bottom line? While your bad experience may leave you understandably leery of lawyers in general, it is important to take action if you are the victim of legal malpractice. Not only can it help you get the compensation that you need and deserve, it allows you to how the attorney accountable for his or her actions and make it less likely that someone else will be victimized as you were.

Not sure whether or not you have a viable legal negligence case? Reach out to an experienced Florida personal injury attorney to go over the facts of your case and learn more about the options available to you.

About the Author:

Jeffrey Braxton is a trial lawyer in Fort Lauderdale who has devoted his career to the practice of personal injury law. As lead trial attorney for the South Florida Injury Law Firm, Jeff has litigated thousands of cases and is a member of the Million Dollar Advocates Forum, an exclusive group of attorneys who have resolved cases in excess of one million dollars.

Florida law, and the process by which lawsuits and settlements are carried out in court, can be complex. That’s why lawyers are hired in the first place. You put your trust in an attorney because you expect them to know Florida laws and follow the rules, regulations, and best practices of their profession.

Because they have a duty of care to you.

Unfortunately, not all lawyers have good intentions, and some just aren’t cut out to handle specific cases – or the profession itself. If you find yourself working with an attorney like this, it may be weeks or months before you realize it. By the time you do, irreparable harm may have already been done.

That’s why, if you are working with a lawyer, you need to know the signs of legal malpractice. Identifying a negligent attorney early can prevent you from suffering extensive damages – or at least minimize the damage to what has already occurred.

Signs of Legal Malpractice

Missing Deadlines, Failing to Be Prompt. If your lawyer can’t be trusted to be on time, you run the risk of having your case thrown out. Courts have very specific deadlines (including statutes of limitations or filing deadlines) that can make or break a case.

If you miss a deadline, your case can be thrown out, preventing you from obtaining any potential compensation that you would have gotten had your case been filed on time. Simply being late for a meeting or missing a phone call is excusable if it happens once or twice, but if you are constantly waiting for your lawyer to call back or meet with you in a timely manner, you may have a problem on your hands.

False Information. One of the top reasons for legal malpractice suits is failure to apply or know the law. Lawmakers are constantly working to adapt and improve laws and legal proceedings. Relying on old laws, or not knowing the law altogether, can result in your lawyer missing key information that could help your case.

If your lawyer appears to be confused or misinformed about specific Florida policies, you may want to get a second opinion and possibly hire a different attorney.

Failing to Compromise, Be Flexible About Meetings or Payments. When you first meet your lawyer, discuss where and when you will be meeting. Ask the tough questions about payment.

After all, you’re paying for their services. If your attorney grows increasingly inflexible about payment, or does not follow the rules you previously set for meetings and communication, you may have a problem.

Lack of Transparency. Lawyers are often advised to ask clients whether their information can be disclosed before taking the client on. If your attorney fails to ask you about disclosure, it is fair to wonder what information they are not disclosing to you.

Your lawyer is not just representing you in court, and their other clients may result in a conflict of interest. If your attorney is not being honest about their current caseload, or seems to be hiding important information (including information about billing), do not ignore this red flag.

Poor Communication or Listening. Working with numerous clients can be a lot to handle, but a lawyer has the responsibility to give the necessary time to every single person they take on. If your lawyer fails to remember details about your case, your intentions for hiring the lawyer, or other crucial information, you may have more than just a forgetful lawyer on your hands.

If your lawyer has a bad memory, they should at least be able to document your calls and meetings and review them before you meet again. After all, what information might they be forgetting when they are researching your case and how the state of Florida will handle it? An attorney who neglects to keep track of your communication may be found guilty of other types of neglect or negligence.

If You Suspect Your Lawyer of Committing Malpractice

Just because your current or a previous lawyer has raised red flags with you does not mean that they are guilty of malpractice. However, if your lawyer failed to fulfill a duty to you and this negligence led to financial damages, you may have a malpractice suit on your hands.

In order to win your claim and receive the compensation you deserve, though, you will need to be able to properly document the malpractice, as well as proving that it was the lawyer’s negligence that caused your financial losses.

Reach out to a South Florida legal malpractice lawyer to learn more about your options and the possibility of receiving financial compensation.

About the Author:

Jeffrey Braxton is a trial lawyer in Fort Lauderdale who has devoted his career to the practice of personal injury law. As lead trial attorney for The South Florida Injury Law Firm, Jeff has litigated thousands of cases and is a member of the Million Dollar Advocates Forum, an exclusive group of attorneys who have resolved cases in excess of one million dollars.

Deciding to work with a lawyer is a big deal. When you put trust (and money) into a hiring a lawyer, you may have thousands of dollars in damages, a clean criminal record, visitation rights, and more on the line. Additionally, attorneys have a legal and professional duty to do what they can to provide you with the best possible representation.

Unfortunately, lawyers make mistakes just like everyone else. Sometimes, these mistakes may constitute professional negligence.

If your attorney’s negligence caused you material harm (for example, costing you money or leading to a conviction) the state of Florida gives you the right to sue your representative for legal malpractice in order to hold them accountable for their actions and provide you with the compensation that you deserve.

Legal malpractice can be complicated to understand, however, and even harder to prove.

When Has a Lawyer Committed Malpractice?

You can’t just file a lawsuit against a former lawyer because you didn’t like the outcome of your case. In some situations, an attorney can do everything in their power and still fail to prove your innocence or get you the full compensation you were seeking.

So what constitutes legal malpractice specifically?

The following situations represent the most common types of legal malpractice cases. If your situation doesn’t quite seem to fit into any of these, it doesn’t necessarily mean you don’t have a case. The best way to know for sure is to reach out to our office.

Failure to Know or Apply the Law: Knowing the law is a pretty important duty placed upon all lawyers, whether you are dealing with criminal charges or determining fault after an auto accident. This includes knowing the changes and updates made to the law throughout the years.

One new provision to a law could make or break a case, so details are key. If your lawyer did not know the details of the law well enough and allowed your case to end unfavorably and unjustly, you may have a strong case of legal malpractice against them.

Failure to Meet Deadlines: Deadlines for specific petitions or paperwork can make or break a case. Your lawyer has the knowledge of these deadlines, experience working with them, and you paid him or her to make them. Failing to do so is a strong argument supporting negligence.

Failure to Appear for Hearings: A lawyer’s advice over the phone can only go so far. Failing to show up to court with a client is a big no-no. It can make a huge difference in a case and cost the client through the final ruling.

Inadequate Investigation or Discovery: During the discovery phase, an attorney must gather all of the relevant information, including witness testimony or financial documents that could be used in trial.

Let’s say you offered to give your lawyer an affidavit or the name of a witness that might have helped in your trial, but the lawyer refused to take it or consider it. If you can prove how this piece of evidence would have helped your case, you may be able to prove the lawyer was negligent.

Conflict of Interest: You are not the only client of your attorney. Attorneys handle multiple cases at once, but are strictly advised not to take on two clients with conflicting interests. Working against your case in favor of another client’s case is a conflict of interest.

Commingling: Attorneys who deal with business planning or financial matters may oversee money being transferred, invested, and so on. An attorney can advise a client on where assets and funds should go, but should not mix their own funds in with the client’s.

What Should You Do to Fight Legal Malpractice?

If you have discovered that your lawyer committed legal malpractice while representing you, your next step is to file a lawsuit against that lawyer. Working with your new attorney, you will need to prepare a case that can prove the following:

• The lawyer had a duty or responsibility to represent you
• The attorney breached that duty through conflict of interest, negligence, etc.
• The attorney’s actions or negligence caused a ruling or led to actions that caused financial damages
• You suffered financial losses or damages

As hesitant as you may be to put your trust in another lawyer, this is your best bet for proving legal malpractice. This form of malpractice is pretty tricky, and a lawyer with experience representing malpractice has knowledge of the laws and procedures that will help to prove where or when a lawyer breached their duty to you.

Talk to a Florida malpractice lawyer today to learn more about malpractice cases, and your options for filing a legal malpractice lawsuit.