What is Legal Malpractice?
Legal malpractice is generally defined as a situation where a lawyer failed to provide the quality of service required by law, and caused injury to the client by that failure to properly represent them. Many times certain legal actions can have what is called a "statute of limitations" that is short, a specific timeframe in which the attorney must act. If the attorney does not act on behalf of their client within that timeframe, then the client’s case may be prejudiced because of it. Even if the client has a strong case, some attorneys may not realize the timeline for acting, so they may delay providing the proper level of service. In the same way, if the client needs to remove a default or respond to a motion, as the case may be, there is a specific amount of time to do this. If a client shows up to court and the attorney has not responded with the necessary motion , the case may be lost because of it. Even if the attorney does come to court with the proper paperwork at a later date, sometimes the judge will rule against the client regardless, due to timeline issues. One of the most common situations that can lead to the dismissal of a complaint or even the loss of a trial is the lack of attorney representation at a court hearing. For example, if an attorney represents a defendant in a lawsuit and the attorney does not show up to court to defend the matter, the judge could dismiss the case in favor of the other party, or enter a default that can have serious consequences for the client. Many people often confuse legal malpractice with what is known as "malpractice." Malpractice is a generic legal term that refers to any type of negligence claim against an individual in any profession, including doctors, accountants, and attorneys. Legal malpractice is a specific type of malpractice that falls under the umbrella of legal action.
When Do You Need to Hire a Legal Malpractice Attorney?
A major wakeup call that you may need the guidance of a legal malpractice attorney in Florida occurs when you notice a breach of duty. There are many kinds of breaches of duty that can cause you to go in search of professional legal help. Some of the common ones involve: Poor communications – the chances of a case falling apart from simple miscommunications are high. If you understand your case, are kept in the loop, and have all your questions answered, you probably have a competent legal team. Negligence – Sometimes, lawyers err and do not meet standard obligations. The most common negligence lawyers for a legal ease tend to focus on are: Breach of the law – If your lawyer works against the reciprocity of the law, you might have grounds for a case. Fraud – In here, a lawyer could violate the ethics rules of the Florida Bar. This happens when he or she knowingly gives you statements that are false. For more information on signs you may need to see a legal malpractice lawyer, do not hesitate to get in touch with us.
Choosing a Florida Malpractice Attorney
When seeking to retain a legal malpractice attorney in Florida, consider several key factors to determine the best fit for your case. First and foremost, evaluate their experience and expertise in handling legal malpractice claims. Look for attorneys who specialize in legal malpractice, as they will possess a more in-depth understanding of the unique challenges and nuances associated with such cases.
Next, examine their reputation within the legal community and among past clients. Consider online reviews, testimonials, and any ratings or rankings from reputable sources. An attorney’s reputation can speak volumes about their professionalism, knowledge, and interpersonal skills.
Finally, assess their communication style and the overall atmosphere of their office. A legal malpractice case can be a lengthy and complex process; therefore, having an attorney who you feel comfortable communicating with regularly is crucial. Ensure that the attorney and their team return phone calls and emails promptly and answer any questions you might have with clarity and professionalism.
Choosing the right legal malpractice attorney in Florida can greatly impact the outcome of your case, so take the time to research and ask the right questions before making your decision.
The Malpractice Claim Process
The legal process for pursuing a legal malpractice claim in Florida first entails filing a complaint in the appropriate circuit court, depending on the facts and venue that best lie within the 20 judicial circuits of the state. Pursuant to Florida’s Fourth District Court of Appeals, which oversees Broward County, plaintiff’s legal malpractice attorney must be careful to strictly comply with Rule 1.540, Florida Rules of Civil Procedure, so as to allow the defendant the opportunity to cure their mistake before a claim is made. For example, even an untimely written request for additional information beyond the 30 days is sufficient to allow the defendant attorney a grace period for correcting the alleged mistake, and if the information requested is relevant to the case in chief. Likewise, the appellate court held that although formal discovery is not required before attempting to settle the matter, there must still be a showing of good faith .
In the complaint, the plaintiff must set forth the four necessary elements of a legal malpractice claim: (1) existence of an attorney-client relationship between plaintiff and defendant; (2) breach of the duty to exercise that duty of care; (3) that damages were sustained; and (4) the proximate cause that the plaintiff could have prevailed in the underlying action but for the defendant’s wrongful conduct. What remains to be decided is whether the plaintiff’s legal malpractice attorney is able to prove to the satisfaction of the jury that the defendant-attorney breached this duty, and, as a result, plaintiffs would have prevailed in the underlying case.
Perry v. Varnes, 845 So.2d 894 (Fla. 1st DCA 2003). The litigation process can be lengthy, especially between the varying stages of pre-trial, trial, judgment, and appellate considerations.
Questions to Ask Your Malpractice Attorney
A number of things must be cleared up before a legal malpractice case is hired. First, is the rule of civil procedure that says: "the attorney-client privilege (or confidential attorney-client communication) is waived when the a prospective client seeks an attorney advising as to whether the prospective client has a legal malpractice claim." It does not matter is the consultation is in person, on the phone, or in emails. If a legal malpractice case is to be governed by Florida statute, it must be within two years of the date on which you knew or should have known there was malpractice. These two criteria are well established and we already know they will come up if a case is to be brought.
Questions for the potential legal malpractice attorney: 1) have you ever handled an appellate lawyer case before? 2) have you recently handled an appellate lawyer case and if so, how did it come out and what did the appellate court say 3) how could the client have recovered more money or won the case 4) would you have had to file a motion for rehearing? 5) if you lost, is there an issue of fees and costs which must also be recovered? 6) will you take the case on a contingency fee basis or hourly retainer? These questions get right to the heart of the case and are essential as once they are asked and answered, there’s no going back and admitting that the legal malpractice case should not have been brought.
Typical Results of Malpractice Cases
Much like in other types of personal injury cases, the ultimate resolution of a legal malpractice case may take one of several routes. Legal malpractice cases may be resolved by way of settlements between the parties without any formal court intervention, or the case may be decided in court through litigation of the issues of the case. Claims for damages may be settled prior to the litigation, or they can be determined by a court following litigation of the issue. Statutorily defined damages (which are based on fees paid to the negligent attorney) are generally decided by a court after all liability issues are decided.
Often times, a legal malpractice case may resolve in favor of the plaintiff upon a finding that the attorney was negligent (breached the standard of care), but that the case did not result in any damage to the client. In other words, although the attorney was negligent, the results of the attorney’s negligence did not cause the client any harm or damages. Such a result is more likely where there was no actual case pending which the attorney was handling at the time the attorney was negligent .
If the case was a pending case at the time of the malpractice, or if the attorney provided advice to the client regarding a contemplated new case, the damages in the legal malpractice case will almost always be equal to the "missing" or non-existent case. In other words, the damages for the legal malpractice case will be equal to the value of the underlying case which the negligent attorney was supposed to handle but did not handle properly or at all, or the value of the contemplated case which the attorney wrongly advised the client not to file.
There are certain cases which are governed by special statutory provisions (such as actions against a Florida medical doctor) where the Plaintiff must incur a considerable expense and hardship in order to preserve his or her claim against the negligent attorney. In those cases, the damages are computed by the successful conclusion of the medical malpractice case and the finding of the amount of medical bills and damages suffered by the plaintiff in the medical negligence cases.