Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

Safe Gun Storage Federal and State Laws

Safe gun storage laws are in effect in most all States to prevent accidents in homes especially where children are involved. The ATF (Federal Bureau of Alcohol, Tobacco and Firearms) has a mandate in place for gun selling facilities which states that firearms are to be secured in safes or have trigger locks installed to prevent firing. The selling establishment has to sign a certification form that they comply by this law. This law is required by all states.

Just to mention a few of the state’s safe gun laws, in Texas, as well as other states, a firearm sales facility has to place a sign somewhere visible to all customers buying rifles, shotguns and pistols in their store that says ” It is unlawful to store, transport, abandon an unsecured firearm in a place where children are likely to be and can obtain access to the firearm” (information taken from The Firearm Laws of Texas) or a similar statement.

In New York State, all retailers that sell firearms to customers, whether they are new or used, must provide some type of locking device with their purchase such as trigger locks, cable locks, etc. These locks do not need to be installed when sold and each device must meet certain requirements that prevent firearms from being fired. This law does not apply to sales between dealers. New York does not require buyers to secure their firearms with these devices but it is highly recommended they do. Firearm owners should check with their local authorities to determine if there are any local ordinances require otherwise. There are codes within the state that states it is a criminal violation punishable by up to 10 days imprisonment and/or a fine up to $250 for any owner to store or leave a firearm in such a manner that is out of their immediate possession or control, without making the weapon inoperable by installing a safety locking device.

While these required types of locks do protect firearms from being fired, they do not prevent them from being stolen once the buyer places them in their home. Gun cases and wood gun racks do not deter gun theft and do not qualify as safe storage. They should be secured in locking devices such as locking gun racks, firearm safes, etc. to add extra security.

Several states have passed laws that make firearm owners criminally liable if someone is injured because a child gains unsupervised access to a gun and can issue fines or jail time where children are involved depending on the circumstances.

Florida, as well as other states, has several laws and regulations regarding safe gun storage in homes as well as in vehicles. The state of Florida’s major concern is the safety for children. Anyone in violation of improper storage of firearms where children can have easy access could be subject to up to 60 days in jail and a $1000 in related fines.

The state of California, like in most all other states, requires all firearms be stored in a safe and secured manner. They also require all retail sales of firearms include a Department of Justice locking safety device or proof that the purchaser owns a firearm safe that meets regulatory standards established by the department. The types of approved devices can be found on the Department of Justice’s website…

Since State laws are constantly changing, this article is for general information and not for official use. You can check with your state and local authorities for current updates pertaining to safe gun storage laws.

How the Lawyers Determine That the Injured Party Has a Solid Case For Claim

Personal injury claims are a way to get a reward for the injuries and sufferings that a person goes through as a result of an accident. This accident has to be happened due to the rashness and neglect of another person who gets to be held liable in order to pay the compensation to the injured party. Lawyers play a very important role in these cases and most of the credit goes to them if the claims are won or lost.

Personal injury claims are being based on different types of injuries that can be the resultant of different types of accidents. So, there are different types of lawyers as well who deal in their respective genres of personal injury claims. After getting injured due to a specific kind of accident, the victim is supposed to consult with the lawyer dealing in that branch. It is not a compulsion but it is highly recommended and advised in order to achieve the maximum results. The first step, that is supposed to be taken on the behalf of the lawyer who is being consulted by an injured party, is assessing the extent of fault.

The lawyer is to determine after having listened to the details of the accident whether the claimant has a solid case or not. There are many victims who think that are free of fault but after discussing it with lawyers they come to know that it is they who are to be held responsible for that accident. This is the very basic criteria of a claim that is to be made on legitimate grounds. The injury should be assessed in a truthful manner. All the questions come afterwards once this is being established that the fault belongs to the accused party.

Then, the lawyer makes sure that the victim has gone through an injury that can be physical, emotional or financial. As far as the physical injury is concerned, the lawyer asks for the medical report in this regard. Through this, he establishes the intensity of the suffered pain and makes it a point on which the claimant is to be compensated.

And the rest is the matter of legal proceedings that are dependent on the presentation style of the lawyer, how he makes his client appear on a righteous stand by proving the fault of the guilty party with the help of evidences. This is the reason that the specialist and professional lawyers are considered vital for the success of the personal injury claims.

The contents of the article are provided for informational and educational purposes only and are not intended for a legal advice.