If the lawyer has insurance and timely notifies the carrier it will defend and indemnify the lawyer. I handle lots of legal malpractice cases and many lawyers don't have insurance.
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If you file a lawsuit they must disclose the existence of insurance. If it is a firm then chances are they had insurance. Smaller firms and solos are less likely to carry insurance.
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It's possible for your attorney to not have insurance, it's not required.
You should speak to a legal malpractice attorney ASAP to discuss a possible case.
Joseph L. Ciaccio is a New York attorney with the Law Offices of Joseph M. Lichtenstein, P.C. (medicalattorneyny.com). The answers posted herein are not legal advice and do not create an attorney-client relationship.
Legal malpractice cases are traditionally more difficult than a conventional personal Injury case. I have been handling these types of cases for more than 30 years and essentially it is a "case within a case". That means that the underlying case must be proved, in addition to proving the malpractice of the lawyer. The failure to prove one or the other will cause the entitled claim to fail.
Before getting started, it is imperative that both claims be investigated and evaluated. The. Statute of limitations for the municipal claim is 1 year and 90 days and the legal malpractice claim has a 3 year statute. It is critical to know the exact nature of your lawyer's negligence before moving forward.
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Blowing a statute of limitation is a violation of a statute and is therefore in a category known as negligence per se. That is, the transgression in and of itself constitutes negligence. The next question is whether that negligence is a departure from good and accepted legal practice in New York. Any reasonable person will have to conclude, yes. The final inquiry in this chain is whether the malpractice is the proximate cause of your damages. Since you are forever barred from filing this lawsuit and the malpractice caused this bar, we have a putative causal connection but we do not yet have damages. To establish damages, one must prove that s/he would prevail in the underlying case.
It takes a lawyer familiar with both the requirements of proving a malpractice case and proving the underlying case to do a proper job here. A trip and fall is no longer an easy case, even in Brooklyn. The de minimis defense and the open and obvious defense are prevailing more and more often. Juries are more cynical than ever. Picking a jury for a legal malpractice case involves, essentially, picking jurors for two cases. The rub is that a person may be a good juror for one branch of the case but not the other. Picking a jury in this context is partially about minimizing conflicts.
My point is, many claim to do malpractice and many do. You need a lawyer who understands the requirements of proving the malpractice case and proving the underlying tort (in this case) case.
I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not legal advice. These opinions are based on New York practice. We have no attorney-client relationship. conducting a conversation with me through the avvo comments section does not create an attorney-client relationship. I may be contacted at 212-553-9300.
While legal malpractice cases pose significant issues, letting a statute of limitations expire when you have a credible claim is indicative that you may have a case to pursue. Have a legal malpractice attorney retained and make sure claims are investigated not only against the attorney but also against both firms as well. I am sure that our firm and the other attorneys who responded to you would be glad to discuss your case.