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How Could You Miss The Statute Of Limitations??
Legal malpractice is a complex area of practice. The standard for bringing a lawsuit based on legal malpractice is extremely high. More often than not, when people believe they have a claim against their attorney, they do not. Most of the time, when someone believes she has a case, what she really has is (a) a non-actionable bad result, (b) an ethics violation and/or (c) a fee dispute.
In order to have a potential legal malpractice case against your lawyer, you must have the following:
The attorney must be your lawyer. You must have formed an attorney/client relationship with him. There are times when attorneys inadvertently form attorney/client relationships, even if they have not specifically agreed to take on your case, however, these are pretty rare. If the lawyer is not your lawyer, he does not owe you a duty of care. If the attorney in the case is representing the other side, he cannot commit malpractice against you and you cannot sue him for malpractice. It is possible for the other side’s lawyer to violate ethical rules, but it is not possible for him to commit malpractice against you.
The legal standard of care is what the average lawyer should do (or should not do) under a certain set of circumstances. This standard of care does not mean that all lawyers must do the best job possible, rather, it is the floor. The minimum a lawyer must do (or must not do.) For example, a lawyer must not allow a statute of limitations to pass. The statute of limitations is the period beyond which the client may not file a lawsuit. However, even missing the statute of limitations is not always malpractice. If you contact a lawyer one day before the statute of limitations, it is probably not the lawyer’s fault if he cannot meet the statute. If you contact the lawyer a year before the SOL passes, then your chances of having a valid complaint are much greater.
In order to prove a violation of the legal standard of care, an attorney who practices in the same area must be willing to provide a document stating that the other lawyer violated the standard. (This cannot be the lawyer representing you in your legal malpractice case. Instead it will be an expert witness your lawyer hires on your behalf.) This document is called a certificate of merit.
Whatever damages you suffered due to the violation of the standard must be directly related to that violation. For example, if your lawyer forgot to send a document to the other lawyer that was a critical document, that might be a violation of the standard of care. But if the lawyer was able to correct the mistake, and then you still lost your case, the original violation has nothing to do with your damages.
You must be able to prove your underlying claim. Legal malpractice cases are often called a trial within a trial for this reason. If you cannot show that you would have won your case but for the original lawyer’s behavior, you do not have a legal malpractice case. For example, if you had a car accident and the SOL passed so you cannot file suit, but you are not able to prove that you were injured in your car accident, you won’t have a lawsuit against that lawyer. You don’t have any damages. If your malpractice lawyer brings your case to trial, she has to prove both the violation of the standard of care and the underlying case you hired your original lawyer to try for you.
As a side note, those damages must be relatively severe. This is because legal malpractice cases are both time consuming and expensive.
Frequently, people will tell me that the lawyer just did a bad job. Understand, under the legal standard of care, if the lawyer made what is called the prima facie case, then it will be all but impossible to prove the lawyer violated the standard of care. The lawyer may not have done a very good job, but if he just failed to persuasively argue your case while still providing facts that support what is required of him, then you are unlikely to have a claim. This is why it is crucial that you pick a good lawyer right from the start. For advice on choosing a good lawyer, check out How Do I Choose a Lawyer.
All of the parts required for a legal malpractice case work together. This means, no matter how egregious the violation of the legal standard of care, if you don’t have damages, you don’t have a case. Similarly, no matter how severe your damages, if you cannot show a violation of the standard of care, you don’t have a malpractice case. You need to have all of the parts to have a claim against your lawyer.
LOWENTHAL AND ABRAMS, P.C.
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