The Basics of Legal Malpractice
Legal malpractice is legal misconduct which generally occurs when a lawyer fails to perform competently the essential functions of his or her representation. A legal malpractice claim may be brought against an attorney who has negligently failed to protect a client’s rights, resulting in damage to the client. In order to win a legal malpractice claim, the plaintiff must prove the underlying case that the attorney was originally hired to pursue would have succeeded but for the attorney’s conduct. The plaintiff is required to establish to the court what the underlying result would have been and offer evidence that the attorney’s conduct was the proximate cause of their loss. If the plaintiff is unable to prove the underlying case, then they cannot seek legal redress against the attorney for losing the case for the client.
Some common examples of legal malpractice are when an attorney defaults and fails to show up for a hearing; and if the hearing cannot be held due to the attorney’s nonappearance, a default judgment will be entered and the case is over. When an attorney misses a filing deadline, the court cannot consider the late filed documents. The plaintiff will then have to seek legal permission to reinstate the case. If the attorney has the legal right to seek reinstatement of the case, the plaintiff may still be able to pursue their underlying claims. If the plaintiff is not granted reinstatement of the case, they can sue the attorney for failing to meet their obligation to competently represent the client and file appropriate documents.
Or , the client may ask the attorney to make an application for a request for a disability hearing before the Veterans Administration, and the attorney does not submit the request. The client is then forced to hire a new lawyer to correct the situation and re-file the disabled request with the office of disability and review within the Department of Veterans Affairs.
Finally, in some cases the attorney does not follow the clients’ instruction concerning the handling of a matter and the client forces the issue, so the lawyer withdraws as counsel from the case. The client then hires a different lawyer and the new lawyer successfully pursues the case to a favorable conclusion. The client sues the original attorney for legal malpractice claiming the first lawyer did not competently pursue the case. The theory that the attorney on the latter stage of the case somehow proved that the initial attorney committed malpractice is not a lawful theory of recovery against the lawyer. The client can only pursue a legal malpractice claim against a lawyer if the plaintiff can prove the alleged malpractice was injurious or damaging to the ‘first’ lawyer’s representation of the matter. A purely speculative claim cannot form the basis for a legal malpractice claim.
In Georgia, if a plaintiff is able to successfully prove that the lawyer committed malpractice, the plaintiff must prove the lawyer’s negligence caused the plaintiff’s loss. The plaintiff must also prove that the lawyer’s negligence was the proximate cause of the loss. The plaintiff then has the burden of establishing the amount of damages suffered by the client.
The Reasons You Should Hire a Legal Malpractice Lawyer
Should you suspect legal malpractice, you must hire a legal malpractice attorney. These attorney’s have the knowledge and experience, both in legal malpractice and within the case that you believe constitutes legal malpractice. Legal Malpractice cases require an attorney who has first hand experience with the underlying matter. It is a niche area of practice.
Legal malpractice attorneys are a bridge between your prior attorney that failed you, and the trial court. The matters that need to be explored, both to get to the "yes" answer and also to negotiate with the relative insurance company, is something that they have done day after day, case after case. They know if it’s worth the effort and cost to push through to a case or if they have to sit back and wait.
At some point when the attorney will say to you that there is nothing more they can do, that the case is over and may likely get dismissed: you may be short on cash, emotionally exhausted and just annoyed; however, they are looking at the case through the lens of the insurance company. Sure, if you won, they would get their legal fee, but at what cost? It’s sometimes just best to take a smaller amount in settlement, and move on.
Characteristics of Atlanta Legal Malpractice Approaches
When searching for the best legal malpractice attorney in Atlanta, GA, there are certain key qualities you should consider. Start with experience: seek out a legal malpractice attorney who has a proven track record of handling similar cases and who is well-versed in relevant ethical rules and standards of conduct for lawyers. While no one can perfectly predict the outcome of a case, an experienced attorney can provide guidance on the likelihood of success and likely costs and risks involved. Specialization is critical. When it comes to a legal malpractice case, an attorney will be bound by the ethical rules and standards of conduct that apply to lawyers in the state of Georgia and to members of the State Bar of Georgia. Seek out an attorney who specializes in legal malpractice: even a family law attorney or a medical malpractice attorney who does not regularly work on legal malpractice cases may not have the experience required to represent you. Client reviews are the final key component to evaluating an Atlanta legal malpractice lawyer. Consider client testimonials, Google reviews, Georgia State Bar reviews, and word-of-mouth referrals from trusted sources. Researching the attorney’s reputation can help you determine whether you can trust that the legal malpractice attorney will follow through on promises and could be a strong advocate for you.
Vetting Legal Malpractice Attorneys in Atlanta
When it comes to finding reputable legal malpractice attorneys in Atlanta, GA, there are several avenues available to consumers. From seeking referrals to exploring online databases, the options are endless when it comes to conducting an exhaustive attorney search.
Referrals are one of the best ways to find a quality legal malpractice attorney. From state and local bars to friends and family members, obtaining a referral is usually as easy as asking around. While there is no guarantee that a referral will yield the results you’re looking for, referrals are generally a good place to start the hiring process. The American Bar Association-as well as many state and local bars-offers an array of databases designed to help individuals find attorneys for every type of legal matter. The databases are usually organized according to the geographic area and legal niche (i.e. employment law, family law, etc.) applicants are looking for. By creating logins and passwords, applicants can access the information they need without leaving home. Legal organizations often provide recommendations for consumers searching for a legal malpractice attorney. Typically divided according to state, the databases allow users to narrow down their results by county, city, and specific legal niche. As is the case with other attorney finding tools, users can access these databases online with average username and passwords. Another way to find a legal malpractice attorney is to read online reviews on various websites. Providing insight into a given attorney’s level of service, online reviews can be instrumental to finding the best legal representation in Atlanta. While sites like Yelp and Angie’s List can provide information on a narrow range of legal malpractice attorneys, Google+ is another tool consumers should consider using in their attorney search.
Inquiries for Your Potential Legal Malpractice Lawyer
Do you ever feel that when you go for that initial meeting with a potential new legal malpractice attorney, you are just doing a repeat of your prior meeting with the former attorney? Do you ever feel like you have just spent the last two hours explaining every detail of your case, and the new attorney is not really listening? The problem is this: the new attorney knows way more about this stuff than you, but has never heard your story before. This is also the problem that might make them choose not to take your case. When that happens, the experience can feel as though you wasted a lot of your time and energy going over all those details. But wait, here are the questions you need to ask the potential attorney before you spend that time:
- How many of these cases have you had? Be clear here- you are not asking about the types of cases they lost . You are only interested in hearing about the cases they have won, and you are definitely not interested in hearing about cases that they lost. If the prospective attorney cannot provide examples of cases they have won, or at least cases that were dismissed, then you know that they are not as experienced in this area as you are.
- How many cases like this have you had? Same as question #1.
- How much will filing the suit against the previous attorney cost? The new attorney may be willing to front the costs and spread them out over time, or they may require you to pay a retainer up front. Either way, ask the question.
- How do you usually win these cases? Are there any settlement alternatives available if you lose? These are the major questions you should be sure to ask your potential new attorney. Do not forget to ask a few questions about how long the case has to be filed, and where the venue should be located.
What To Do if You Suspect Legal Malpractice
If you have sustained damage due to lawyer error, you do indeed need to practice damage control, and do it quickly. This is a simple to-do list to help you get started:
- Find a law firm that specializes in legal malpractice claims.
- If you suspect malpractice, contact the malpractice attorneys right away.
- Set up a consultation and have all documents needed at hand. Complete copies of your Court file will be necessary (unless the lawyer has them already).
- Bring relevant letters and notes, and be sure to write down as many details as you can recall.
- Be frank – if there are issues with your case, such as a winnable case that you lost or a case that was not pursued, share them with the lawyers who will listen sympathetically.
- Be open to dialogue – they may suggest that the damage done is not a total loss, and that some steps can be taken to correct matters.
- Ask your legal malpractice attorney—can you represent me at this point? If I become a client, what will the probabilities be (some do not take on these matters on a contingent basis).
- Be candid – the relationship between lawyer and client is essential, the defense of the client’s rights must be foremost, and the attorney client relationship is paramount.
- Ask how you can help the legal malpractice attorney, and if there is a retainer, what is its amount?
- Be realistic – if you are defendant, have you obeyed the Courts subpoena commands, also known as discovery commands?
The Legal Malpractice Claim Process in Georgia
The initial step to pursuing a legal malpractice claim is to retain an expert witness to review your case and testify for you in court. An expert will review the entire legal file and determine if the attorney breached the standard of care that other attorneys would have followed in the same scenario. If the case is extremely difficult to prove, the expert will advise you and you will know immediately whether or not it is worth moving forward.
The second step is retaining an attorney who will manage your legal malpractice claim. In Georgia, legal malpractice is statutorily defined as the failure of the lawyer to exercise ordinary and reasonable care, skill, or knowledge.
Pursuing a legal malpractice claim consists of multiple parties. Your legal malpractice attorney will need to work with the attorneys you originally had and the insurance carrier .
The amount of time that a legal malpractice case takes from start to settlement varies, as the facts of each case are unique. However, the statute of limitations in Georgia is generally four years from the date of the malpractice. In some instances, the statute of limitations can be longer or shorter depending on the situation. A skilled attorney can discuss the potential timing with you.
When you retain an attorney for legal malpractice in Georgia, the firm will typically request the complete litigation file and supporting documents and information. These documents include pleadings, affidavits, briefs, orders, expert reports, motions and their attachments, discovery material, and trial records. Other documentation that may be requested includes a litigation chronology and a history of the representation.