What is Legal Malpractice
Legal malpractice is a complex and critical issue that arises when a lawyer fails to act competently and this failure negatively impacts the client’s legal standing. In Florida, five elements must be proven for a legal malpractice case:
- The attorney-client relationship
- Negligence of the attorney
- Harm to the client
- Causation of harm
- Loss of the case
To expand on this, an attorney-client relationship is defined as whether or not a contract was formed by the actions of both parties, mutual assent through verbal or written means, and consideration (i.e. payment, even in kind) towards legal services. A breach of the first element may be established through the length of the relationship (i.e. via retainer agreements) and payment made by a client in anticipation of completion of a case or service. Negligence means that a duty was owed by the attorney, and that his or her actions or inactions in the performance of the duties were the cause of harm to the client. The burden of proof lies with the party bringing the suit to present evidence that these breaches occurred, how they affected the client, and any tangible damages that resulted from negligence. For example, the attorney failed to file the appropriate documents on time (and client loses the case); the attorney failed to report new evidence (which would have changed the outcome of the case); and the attorney provided erroneous legal advice (which cost the client time and money). Legal malpractice is a significant matter that is best handled by an experienced legal malpractice attorney Tampa residents trust. Over time, a legal malpractice claim can age and become even more difficult to litigate against , thus it is crucial to seek qualified legal representation sooner than later, not only to investigate any wrongdoing, but to preserve your legal rights.
Legal malpractices can take many forms. Common examples include:
Providing inaccurate legal advice
Conflict of interest
Failing to obtain informed consent
Failing to follow client wishes and directives and/or failing to provide full disclosure of all options
Providing poor representation in court
Failure to perform sufficient research and investigation
Not preparing a case properly and/or notifying client of a pending deadline
Failure to inform clients of critical issues with their cases
Failing to understand and/or abide by the law
Engaging in criminal conduct or other unethical behavior
Legal malpractice differs from traditional malpractice in that it involves a professional (a lawyer) who is culpable for causing damage based on actions or inactions. In civil cases or criminal matters, it is evident that the client "lost," but essentially, the same can be said of the non litigated side of legal practice as well. When a lawyer makes an error while drafting contracts, obtaining evidence, submitting briefs, and/or litigating a case, the client loses (even if the error is not "easily" caught or immediately recognized). It can be very difficult to understand what went wrong and pinpoint where in the process the error was committed. An attorney does not have to be "rich" in order to afford to hire a lawyer to represent them (evening something off may be exorbitantly costly). Legal malpractice is a serious and complicated matter that should be addressed by an experienced legal counsel, as soon as possible.
Indicators You Need a Legal Malpractice Lawyer
Some signs that you may need a Tampa legal malpractice attorney to pursue a claim against a former lawyer are: failure to meet court deadlines or statutes of limitations, conflicts of interest, improper use of retainer funds, failure to notify you in any way (there are very few states in which a lawyer must be proactive about sending letters informing the client of any issues or problems), failure to keep you informed of any problems or issues concerning the status of your file, failure to apply the law correctly, failure to make appropriate objections, malicious prosecution, false imprisonment, or unreasonable seizure.
There are also some red flags that you should be aware of before deciding to hire a legal malpractice attorney. For instance, if you have given your lawyer a retainer, ask for an accounting. Unfortunately, there are many lawyers who will take a retainer, and then work with an eye toward stretching something that they otherwise would have quickly settled into a long, drawn-out fight. Expect all lawyers to periodically send you a bill and list of hours. You have the right to ask for an itemization, especially if you have paid a retainer fee. If your lawyer refuses to provide an itemization, that could signal trouble, either from your lawyer or from your case.
You should also beware of lawyers who have left loose ends. Most lawyers will put on their electronic devices litigation calendars that alert them as to filing deadlines and provide an index of case materials. If the lawyer you hired does not do this, it may be best to move on. There are times when a lawyer you have decided to fire can save your case, but you should be extremely careful about doing this.
Remember: the burden of proof is on you to prove that the original lawyer was negligent. Legal malpractice law in the state of Florida contains several elements that have to be satisfied (or proven) before the plaintiff can recover, or obtain a verdict. Typically, a plaintiff will need to show that: a duty existed; there was a breach of that duty, proximate causation, and damages. It is important to know if you have a valid case and should seek the counsel of a seasoned legal malpractice attorney.
Consulting with a legal malpractice attorney can ease both your mental and financial burdens. These attorneys know the stakes at hand, and can bring a level of experience to bear that can help you achieve a favorable outcome. Speak with a lawyer about your case today.
Finding a Legal Malpractice Attorney in Tampa
The process of selecting an attorney for legal malpractice can be rather simple. An interview is always a good idea, but it may be the end result that needs to be addressed first. In this respect, what do we need the legal malpractice attorney to do for us? Once the answer is available, the other factors can come into play. Does this person have experience in the type of case you need them to handle? If they have handled 100 cases, but none like yours the result may be litigation based, rather than a settlement. We also address the size of the firm. Larger firms are more expensive, but we need to ascertain if there is a value to that, or not? They are probably in the business longer, and may have handled similar matters. They may have deeper pockets. But just because the legal malpractice attorney is at a large firm, does not make him or her more competent. It just makes them more expensive. Reputation is another factor. An attorney is typically the best bet, but not if there is an adverse criminal past, or if rules have been violated in their practice, such as over-billing, or typically getting involved on the "wrong side" of a case. Apparently, there is a difference between "crooked" and "ethically challenged". Client reviews are becoming a thing of the now, but testimonials on a law firm’s website are not necessarily reliable. Lawyer ratings are important, and The Best Lawyers in America is one of the top referral legal rating companies, and Superlawyers.com also rates attorneys. Again, the question here is whether or not their experience fits your needs? We are of the opinion that the attorney should specialize in legal malpractice cases. They should be in the business dedicated to this defense, and have dealt with the insurance companies that will defend their opponent.
The Legal Path for Malpractice Questions
Beginning the legal process
We need to first remember that the lawyer’s role is to make your case "whole". So, after collecting reasonable and necessary medical expenses, lost past lost future wages, loss of earning capacity, pain and suffering, mental/emotional suffering, and loss of the enjoyment of life, the lawyer needs to get a reasonable attorney’s fee. So, we begin by eliminating potential penalties or fines.
The filing of a lawsuit will be upon each attorney individually, and not as a group.
A lawsuit for a legal malpractice case must be filed no later than the 2 year anniversary date from the alleged malpractice. However, there are some exceptions depending on the circumstances of your case, and some cases can be filed later.
There is a process that must be followed in a prior case once a lawsuit for legal malpractice has been filed. Unlike a personal injury action, there would be no "discovery" (an exchange of information) . In a legal malpractice action, the Plaintiff will need to have all documents related to the prior case. The Plaintiff must then prepare an Affidavit providing the time line of the events in the prior case, and explaining that the prior atttorney committed those acts that caused the legal malpractice. In addition, the Plaintiff must also file an Affidavit of Merit stating the reasons the prior attorney was negligent. An Affidavit of Merit must be filed within a certain period of time in order to maintain the legal malpractice lawsuit.
The process for the legal malpractice case does not end there. In addition, a case management must then be held with the court, to determine if possible motions will be filed. Depending upon the opportunity for settlement, the legal malpractice action can move quickly or slowly through the court system. Also, if the underlying legal matter resulted in a trial, the legal malpractice action could take years.
Case Outcomes in Legal Malpractice Representation
While we always hope that legal malpractice cases will be avoided and that a settlement can be reached, it is important to keep in mind the potential outcomes of filing a claim. A few things that can happen after the claim is filed are: settlement, discovery, and trial. Clients would do well to remember that their case can be settled at any point along the way, and that settlements are often advantageous for both parties. Some advantages of settlement or mediation often include: If a settlement is not reached, then the next possible outcome is a court judgment. A judgment can be rendered for the client against the former attorney in court if the client is able to prove each element of his/her case against the lawyer. Before the decision is made, however, discovery will be conducted by each party. Discovery typically involves written questions called interrogatories, requests for documents, and oral depositions of witnesses. The purpose of this process is to uncover and provide all available information regarding the facts and circumstances of the case, i.e. before, during, and after the attorney/client relationship. This process is extremely important because it allows both sides to review what each will be able to present at the proceeding. A trial can occur before a judge or jury depending on the case. The client’s attorneys will present evidence, and the attorney’s will be able to present their defense and defend themselves against the allegations. After both sides have been heard, the judge or jury will render a decision in the client’s favor or against him/her. If the judge or jury renders a verdict in the client’s favor against the attorney, then the next issue that must be resolved is the amount of damages or money to be awarded to the client for his/her injuries. When there is an award of damages, the client will typically recover the following items: If an attorney-client relationship has been established, and negligence is proven, it is often possible to pursue a claim against the attorney for recovery of lost compensation that should have been obtained from a settlement. If you have suffered a loss of compensation due to the negligence of a Florida attorney or owe a legal malpractice claim, please call Florida Legal Malpractice Attorney Jeffrey Feiler to get started today. Your case can be settled, and mediation should be pursued whenever possible. However, you should not give up if a trial is necessary for a client to obtain the full recovery that he/she deserves.
Common Questions As A Tampa Legal Malpractice Lawyer
What are the costs associated with hiring a legal malpractice attorney in Tampa?
Every case is different, resulting in a diverse range of fees for services provided by legal malpractice attorneys throughout Tampa. At the outset, an attorney will address fees and other costs. Most work agreements will allow for hourly or contingency fee billing. An hourly rate requires payment of a specified amount based on work completed upon the immediate completion of the assignment. A contingency fee freezes the hourly or retainer rate until the case is resolved. In this case, the rate is paid from the proceeds of the case; this type of arrangement is often used in injury, wrongful death and medical malpractice cases.
Are legal malpractice consultations free?
They vary by firm, and require a phone call to determine. Many offices provide complimentary consultations to assess eligibility for service representation. Restrictions may apply regarding the case element or stage . Take note that when an attorney meets you, the consultation becomes a form of attorney engagement. Conversations about your case become legally protected disclosures regardless of whether the lawyer takes your case. That means that if you ultimately hire someone else, you won’t benefit from this information. For that reason, you may consider sharing only non-legal information until you have retained an attorney.
How do I prepare for a meeting with a Tampa legal malpractice attorney?
Bringing all case paperwork to the meeting is a good start. Ask the attorney whether you should bring any specifics such as written reports, documentation of medical expenses, copies of bills, photographs, visual presentations, medical records, tax returns and the like. You may also want to prepare a list of questions regarding the process, the attorney’s role, how fees may change, and whether the research and/or time spent will be charged to you.