The first step in proving a legal malpractice case is establishing that the attorney owed a duty to the client. Typically a duty arises from an employment agreement between the attorney and client in which both parties consent to the establishment of an attorney-client relationship. For example, if a client signs a contract with an attorney for the attorney to handle the client's personal injury action, the attorney now owes the client a duty to take reasonable steps in handling that claim. The attorney would not, however, owe a duty to perform some other legal obligation which was not agreed to, such as handle the client's divorce or bankruptcy.
Breach of Duty
The next step in proving a legal malpractice claim is establishing that the attorney breached his or her duty to the client. In order to establish a breach, the client must show that the attorney did not exercise the care, skill, and diligence commonly exercised by attorneys under similar circumstances. It is not a breach of duty for the lawyer to use poor strategy. Rather, in order for a breach to occur, the lawyer must have made an error that no reasonable attorney would make under the circumstances. The most common examples of a breach of duty is when an attorney fails to file a lawsuit before a particular deadline or when an attorney breaches his fiduciary duty to the client by acting in his own best interest and to the detriment of the client. Breach of duty must usually be proven through the use of expert witnesses.
Damages Caused by the Breach of Duty
The third step in proving a legal malpractice lawsuit is establishing that the client suffered damage, typically financial damage, as a result of the conduct of the attorney. However, if the financial damage would have occurred despite the attorney's misconduct, then a valid claim for legal malpractice probably does not exist. Damages can be proven in many different ways depending on the type of case the attorney was handling. For example, when a legal malpractice claim is based on the negligent handling of a lawsuit, the client must establish that he or she would have prevailed in the underlying action had it not been for the negligent conduct of the attorney.
Common Types of Legal Malpractice
o Failing to file an action within the statute of limitations
o Failing to follow deadlines imposed by the court
o Failing to respond to pleadings filed by opposing parties
o Failing to inform the client of case developments
o Misusing client funds
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