Legal Malpractice

Lawsuit form an a desk
Legal malpractice cases have much more jury appeal than do medical malpractice cases, since while most people like their own doctor and physicians in general, that is not true for lawyers. While the majority of people think their own lawyer is probably “not a bad guy,” lawyers in general are thought of in less than glowing terms. Consequently, a jury is more apt to bring back a verdict against a lawyer than they would against a doctor. Insurance companies know that, and that definitely plays a part in their settlement negotiations.

Since our legislature has not heard the rallying cry of “legal malpractice reform” from the general public, there have not been the statutes passed to protect lawyers that there have been to insulate or immunize physicians. For example, there is a state statute which puts a burden upon the plaintiff in a medical malpractice case to prove by competent medical testimony from a physician, board certified in the same specialty as the defendant, that the defendant physician deviated from the prevailing standards of care. While we always will have an attorney who practices in the same area of law as an expert to testify that there was a deviation from the standard of care by the defendant lawyer, there is no statutory requirement that we produce such an expert. Legal malpractice cases are usually very complex from the legal perspective, and these cases offer less jury appeal to the defendant than does a medical malpractice case.

There are many requirements in legal malpractice cases that are not dissimilar to medical malpractice cases, based upon the laws pertaining to negligence claims. First, there has to be a duty owed to the client by the lawyer before a claim can be made. We have received calls from people terribly dissatisfied with their spouse’s lawyer in a divorce case, since obviously the spouse got a better result than they did. However, we have to regretfully inform these clients that only the client of the lawyer can bring a claim for legal malpractice. There are very few exceptions to this general rule, with one of them being that a third party intended beneficiary has a right to bring a claim against a lawyer, even if that lawyer did not represent them. An example would be that the beneficiary of a will or a trust could sue the lawyer who prepared that will or trust if the lawyer’s drafting of those documents was erroneous. We will always be happy to discuss a potential case with you to determine whether your potential case meets the legal parameters of prosecuting such a case.

While one cannot be compensated in legal malpractice cases for non-economic damages, such as pain and suffering, a claim can be brought for prejudgment interest in these cases. Prejudgment interest is an element of damages not available in standard personal injury cases, and not available in medical malpractice cases. In legal malpractice cases involving domestic law, especially in child custody cases, it does not seem fair that emotional damages are not available, but they are not.

The statute of limitations in legal malpractice cases is similar to that of medical malpractice cases, in that a client has two years from the date he or she discovered the malpractice within which to bring the claim. Unlike medical malpractice claims, however, there is no statute of repose beyond which one cannot bring a claim. In cases involving litigation malpractice, the client has two years within which to bring a claim after the client has sustained a final termination of their rights, regardless of when they discovered the malpractice. It can and often does take years to go completely through the entire appeals process, if there is an appeal from an adverse judgment in a matter involving litigation, and the statute of limitations does not begin to run until all of the appeals are taken and a final order is entered.

Jim Kelaher has been handling legal malpractice cases for over twenty-five years, and does not hesitate to bring claims against any lawyer, regardless of the size of the law firm against whom the claim must be brought, or the influence or clout of the lawyer involved. He has been called a “headhunter” and a “cannibal” by lawyers he has sued, but Jim feels very strongly that we should all be responsible for mistakes which cause damage to others. One of the first questions you will be asked upon calling is the name of the lawyer against whom you wish to make the claim, since Jim has many attorneys who refer him cases and who are friends and acquaintances, and he would not want to bring a claim against one of those lawyers. Please feel free to call to inquire about your potential legal malpractice claim.

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