How to Sue an Attorney for Malpractice
Consider what your attorney did that might be used in a malpractice suit., Determine if your attorney was negligent., Determine if your attorney failed to provide fiduciary duty., Determine if your attorney breached your contract., Consider whether...
Step-by-Step Guide
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Step 1: Consider what your attorney did that might be used in a malpractice suit.
There are three basic categories for a legal malpractice suit: negligence, breach of fiduciary duty, and breach of contract.
Keep in mind that you must also be able to prove that your attorney's conduct hurt you financially and, as a result, you suffered financial consequences., An attorney owes a duty to his or her client to act in the client’s interest as a reasonably competent attorney.
This means that the attorney must perform services at or beyond a minimum level of competence.
If your attorney fails to demonstrate a minimum level of competence while working on your case, it can mean that your attorney was negligent.
For example, if your attorney accepts your case, but then does nothing with it for several months and the statute of limitations on your case expires, your attorney may be considered negligent.
Other negligent behaviors include failing to meet important deadlines, failing to prepare for trial, and failing to follow court orders. , Fiduciary duty means that your attorney is required to act in your best interest.
As part of an attorney’s fiduciary duty to the client, if an issue arises in which an action taken for the client’s benefit will likely cause harm to the attorney, the attorney must act in the client’s benefit in spite of the harm to self.
Remember that these duties are only owed if an attorney-client relationship is formed.
If you are not the attorney’s client, the attorney does not owe you these duties, and you will not have a malpractice case.
Other ways that an attorney may breach fiduciary duty include:representing your opponent having a potential financial gain if you lose the case making sexual advances towards you lying to you about important case information failing to tell you about settlement offers taking a lesser settlement without consulting you using your money without consulting you revealing confidential information without your permission failing to disclose a conflict of interest , If your attorney failed to adhere to specific terms in your contract with him or her, then your attorney may have breached the contract.
Failing to file an action, research a specific item, or file a lien are some examples of how an attorney may breach a contract., Actual cause is often referred to as “but for” cause because you can use the “but for” statement to describe it.
For example:
But for the attorney’s failure to file the agreement in a timely fashion, the plaintiff would have received a settlement of $XXX.
If you are claiming the attorney’s representation was the breach, you must normally prove that you would have won the case if the attorney had acted in a minimally competent manner.
Proving that you might have won is not enough. , The attorney’s breach must be the foreseeable and proximate cause of your damages.
Proximate cause is that the harm is reasonably foreseeable and not too far removed from the action to be attributable to it.
For instance, if someone passed a package of fireworks to a passenger on a moving train, it may be foreseeable that the fireworks would be dropped or the persons giving and receiving them may be hurt.
It is not foreseeable, however, that the fireworks would explode causing an impact on the platform which shakes an industrial scale off its base, hitting a lady, causing her injury.
Both types of causation must be proven to win a legal malpractice suit. , You must be able to prove quantifiable charges in a legal malpractice suit.
Quantifiable damages are those that can be easily reduced to a monetary value.
They generally do not include punitive damages (those meant to punish the offending attorney) or any money to compensate you for pain and suffering. , You must initiate your case with the court within the state’s statute of limitations.
Most states allow three to five years from the time you could have filed your case until the date you actually do, but some states allow as little as one year.Check your statute of limitations or ask your attorney about the statute of limitations on legal malpractice in your state. -
Step 2: Determine if your attorney was negligent.
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Step 3: Determine if your attorney failed to provide fiduciary duty.
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Step 4: Determine if your attorney breached your contract.
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Step 5: Consider whether the attorney’s breach was the actual cause of losing your case.
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Step 6: Determine if your attorney’s breach was proximate and foreseeable.
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Step 7: Determine if you can prove quantifiable damages.
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Step 8: Determine if your case falls within your state’s statute of limitations.
Detailed Guide
There are three basic categories for a legal malpractice suit: negligence, breach of fiduciary duty, and breach of contract.
Keep in mind that you must also be able to prove that your attorney's conduct hurt you financially and, as a result, you suffered financial consequences., An attorney owes a duty to his or her client to act in the client’s interest as a reasonably competent attorney.
This means that the attorney must perform services at or beyond a minimum level of competence.
If your attorney fails to demonstrate a minimum level of competence while working on your case, it can mean that your attorney was negligent.
For example, if your attorney accepts your case, but then does nothing with it for several months and the statute of limitations on your case expires, your attorney may be considered negligent.
Other negligent behaviors include failing to meet important deadlines, failing to prepare for trial, and failing to follow court orders. , Fiduciary duty means that your attorney is required to act in your best interest.
As part of an attorney’s fiduciary duty to the client, if an issue arises in which an action taken for the client’s benefit will likely cause harm to the attorney, the attorney must act in the client’s benefit in spite of the harm to self.
Remember that these duties are only owed if an attorney-client relationship is formed.
If you are not the attorney’s client, the attorney does not owe you these duties, and you will not have a malpractice case.
Other ways that an attorney may breach fiduciary duty include:representing your opponent having a potential financial gain if you lose the case making sexual advances towards you lying to you about important case information failing to tell you about settlement offers taking a lesser settlement without consulting you using your money without consulting you revealing confidential information without your permission failing to disclose a conflict of interest , If your attorney failed to adhere to specific terms in your contract with him or her, then your attorney may have breached the contract.
Failing to file an action, research a specific item, or file a lien are some examples of how an attorney may breach a contract., Actual cause is often referred to as “but for” cause because you can use the “but for” statement to describe it.
For example:
But for the attorney’s failure to file the agreement in a timely fashion, the plaintiff would have received a settlement of $XXX.
If you are claiming the attorney’s representation was the breach, you must normally prove that you would have won the case if the attorney had acted in a minimally competent manner.
Proving that you might have won is not enough. , The attorney’s breach must be the foreseeable and proximate cause of your damages.
Proximate cause is that the harm is reasonably foreseeable and not too far removed from the action to be attributable to it.
For instance, if someone passed a package of fireworks to a passenger on a moving train, it may be foreseeable that the fireworks would be dropped or the persons giving and receiving them may be hurt.
It is not foreseeable, however, that the fireworks would explode causing an impact on the platform which shakes an industrial scale off its base, hitting a lady, causing her injury.
Both types of causation must be proven to win a legal malpractice suit. , You must be able to prove quantifiable charges in a legal malpractice suit.
Quantifiable damages are those that can be easily reduced to a monetary value.
They generally do not include punitive damages (those meant to punish the offending attorney) or any money to compensate you for pain and suffering. , You must initiate your case with the court within the state’s statute of limitations.
Most states allow three to five years from the time you could have filed your case until the date you actually do, but some states allow as little as one year.Check your statute of limitations or ask your attorney about the statute of limitations on legal malpractice in your state.
About the Author
Janet Anderson
Specializes in breaking down complex cooking topics into simple steps.
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