NJ Legal Malpractice 101
Legal malpractice is a somewhat common occurrence in the legal profession, and one which has caused many clients untold grief, years of frustration, and significant losses of money for both clients and law firms in New Jersey. At its most basic, the legal malpractice of an attorney occurs when an attorney is negligent in the performance of his or her duties, and damages result to their client or a third party.
There are many ways in which an attorney may be legally negligent. Below are some common types of legal malpractice we handle here at Lombardi & Lombardi: The above are only some of the ways attorneys may be legally negligent. Remember, legal negligence does not occur just because you don’t win your case, and does not happen only in litigation; legal malpractice can and does happen in all areas of the law. If the attorney fails to perform in accordance with the standard of care within the area of the law in which he or she is practicing, and damages result, that attorney is legally negligent. These scenarios should give you a brief overview of how legal malpractice can occur, as well as the common types of legal malpractice cases we see here at Lombardi & Lombardi.
A legal malpractice claim is based in negligence , which means the plaintiff must show that the attorney failed to live up to the standard of care in practicing law. The failure to live up to the standard of care may not be in only one instance or one area, but may include several areas in which the attorney failed to do what was proper, and a reasonable attorney would have done in a similar situation. If the plaintiff seeks damages against the attorney personally, he must allege and prove that he suffered harm as a result of the attorney’s negligence. In some instances, however, the damage the plaintiff suffered was to a third party; therefore, this third party must be brought into the lawsuit as the defendant attorney may have a defense against liability to the third party for any damage it may have suffered, and to preserve the lawyer-client relationship.
We have handled many legal malpractice claims and can help you understand whether you have a potential legal malpractice claim, and how you can move forward with your suit. Just because you did not achieve success on your legal claim does not necessarily mean the attorney committed legal malpractice. Contact us today to discuss your claim. This post will be updated regularly every week in response to user questions.
How to Know if You Need to Hire a Legal Malpractice Lawyer
The signs that you may need to speak to a legal malpractice attorney about bringing a legal malpractice lawsuit are almost always the same:
- There is no longer time to fix your legal problem;
- Money has been lost;
- A major deal has unraveled; or
- Your case and/or your attorneys fees are no longer being handled properly.
The signs are usually there – whether they are items that appeared on your bill, suddenly and for no reason, you are billed for $20,000 in fees and costs for a matter when its the first time to that nature that you have heard of work done, there is a sudden increase in the hourly rate charged – that you did not agree to. Or, the attorney is suddenly nowhere to be found when you need them and you receive no timely response to your urgent calls and requests for meetings. Or, you discover through the Client Security Fund that your lawyer was stealing funds from your file. Or, the matter is falling apart because the lawyer did not know what they were doing, and you lose the client that you have spent a life time developing.
You may have just found out that the statute of limitations expired for filing a civil suit. Or, that you tried to get an appeal filed in an administrative proceeding but neither you nor your attorney had the hundreds of dollars needed to file the appeal. Or, that that oil lease was worth a lot more than the attorney had you signing away. Or, that the transfer of that land to family member was really much less than fair market value. Or, that the trial was a disaster because your attorney knew nothing about the law involved.
Do any of these sound familiar to you? If so you may already have a legal malpractice action.
How to Choose the Best Legal Malpractice Lawyer in New Jersey
When you have suffered legal malpractice and want to know how to choose a legal malpractice lawyer, you will need to keep a few things in mind. For starters, who do you know that has used a legal malpractice attorney? Second, how do they rank amongst the other legal malpractice attorneys in New Jersey? The important thing is to not limit yourself. There are no limits because the claim is against a lawyer; not against a non lawyer. Ask around and find out who suffered legal malpractice, where they went (in the past 48 months or so) and how happy or unhappy they are with them.
Next you can start to research on the internet. You will want to look for an attorney who has experience specifically in legal malpractice, as well as experience practicing in the area of law in which the legal malpractice occurred. If you have suffered legal malpractice in the areas of trusts, estate planning, family law, guardianship, tax or real estate law, you will want an attorney who knows what a will should say, or how a family law case should be handled. A legal malpractice attorney who is getting into that area of the law (family law, for example) will not know about those cases and the rest of the case will not be able to go forward. That said, if your legal malpractice attorney does not know at least how a probate case should be handled along with the legal malpractice, then he or she is probably not experienced enough to handle your legal malpractice case.
The next area to look at on the internet are reviews and recommendations. Who recommends this lawyer, and why? You will certainly want to interview them. If you bring some of your case file to the meeting, then you will be able to see how much of a command of the facts your legal malpractice attorney has. If the attorney has been recommended, ask the person who recommended them whether or not they were satisfied.
The Process of Filing a Legal Malpractice Claim in NJ
The process of filing a legal malpractice claim is reserving rights, hiring an expert and preparing a complaint. Initially, written notice is sent, and sometimes a deposition is taken to ascertain questions about the prior case. A complaint is prepared averring some of the causes of action of the underlying suit along with the legal malpractice allegations. Whether or not expert testimony is needed depends on the language of the summons served upon the plaintiff in the prior case and the application of the Berger decision, which states a particular bar in these cases and requires the obtaining of an expert, if applicable. Once the case is filed, the defendant files a motion to dismiss. If the case survives a motion to dismiss, discovery is then conducted including interrogatories, document production and depositions.
How to Prove a Legal Malpractice Case
Even though we are talking about NJ legal malpractice litigation, it is really the same in any case around the nation; it is important to understand what you must prove to win. As a NJ attorney who has handled hundreds of legal malpractice cases, the definition of "malpractice" in the legal malpractice context is a departure from the accepted practice of an ordinary, reasonable, prudent attorney practicing law. The gravamen point is the "departure" and whether it caused you harm.
In order to prove a legal malpractice case you have the burden of proof of "proving your case" by a PREPONDERANCE of the EVIDENCE" which is to say more likely than not, that the malpractice occurred. Now, we break that down further to see what actually has to be proven: NJ law states that to prove up the departure from good practice , you must show that you would have succeeded with the underlying case but for the atttorneys negligence. That also means that you will have to establish and prove all of the elements of the underlying case; so how do you do that? Plaintiff ‘s expert: In every legal malpractice case, we need an attorney to act as our expert. That expert has to opine that the attorney departed from an accepted practice. That is not enough; he or she has to also opine that "but for the attorneys malpractice there is a reasonable probability that plaintiff would have succeeded in the underlying litigation" and "plaintiff’s damages are a result of this neglect." See, Croce, supra, 225 N.J. Super. at 547.
Common Legal Malpractice Pitfalls
One potentially difficult aspect of a legal malpractice claim is proving the underlying legal malpractice case. The plaintiff is the adverse party from the original action at issue, and has no need to cooperate with the new litigation against his or her former attorney. They have no desire to provide testimony, affidavits and documents, nor is there a good way to force them into doing so if they aren’t willing. Many times, they will use this unwillingness against the plaintiff in a variety of ways. For example, in the case of Ontel Products Corp. v. Mazer, 786 So. 2d 1239 (Fla. Dist. Ct. App. 2001), the plaintiff forgot to respond to the requests, and was given a ruling against him without further hearing or discussion. In addition, a large number of legal malpractice claims rely on expert testimony and documents from the matter that the original representation itself handles. First, for the court to admit the documents into their system, they must be introduced in accordance with the rules of evidence. This means the representative will need to have certified copies made, obtain signed affidavits of admissibility, etc. At that point, the plaintiff must then seek to have the court consider testimony from one or more experts, to give a sufficient foundation for the case. If there is no expert testimony, the plaintiff may not be able to prove his or her case. Roughly speaking, a legal malpractice claim will normally not be considered unless the plaintiff can rely on the testimony of a licensed attorney, and have this testimony certified as correct, admissible and neutral in the case.
Possible Outcomes and Settlement Amounts
When pursuing a legal malpractice lawsuit, it is crucial to understand the possible outcomes and compensation that may result. In New Jersey, successful legal malpractice claims can result in various types of damages awards.
At its core, legal malpractice damages aim to compensate the plaintiff for the financial losses incurred due to the attorney’s negligence. These may include:
- Direct financial losses: These are the most straightforward and typically include any amounts awarded or settlement offers in the original case that the attorney failed to pursue effectively. For example, if an attorney was handling a personal injury case and failed to file within the statute of limitations, the plaintiff could seek damages equal to the compensation they could have received had the personal injury case been successfully prosecuted.
- Consequential damages: These are additional losses that resulted from the original legal matter. For instance, if the attorney’s negligence led to the plaintiff losing a business opportunity or incurring medical expenses that would have been covered in the original case, these could be included as consequential damages.
- Emotional distress and pain and suffering: In some instances, if the plaintiff can prove that the attorney’s negligence caused significant mental anguish, emotional distress, or physical ailments, compensation may be sought and awarded for these damages.
- Reimbursement of legal fees: As part of the legal malpractice case, the plaintiff may be able to recover the money they paid for the legal services in the original action.
The potential impact of a legal malpractice claim on the parties involved can be significant. From the plaintiff’s perspective, a successful claim could lead to a financial recovery that should compensate them for any losses incurred and for the time and effort expended in the underlying legal action. The defendant, usually the original attorney, could face severe damage to their reputation and career, aside from the financial aspect of the adverse judgment. Often times, a successful legal malpractice case will result in serious financial problems for the attorney, both with regard to lining up insurance coverage for the case, paying the unanticipated defense legal fees and costs, and making payment of any adverse judgment. The defendant’s insurance coverage costs usually also dramatically increase.
Plaintiffs in legal malpractice cases should consider all aspects of their recovery when seeking to find the right attorney to assist them, both with regard to the litigation and any financial advices that might be required.
How to Avoid Legal Malpractice
There are some simple rules that help both attorney and client avoid legal mistakes:
- Have a written contract with your attorney. It should specify that he is being retained and will be paid while also detailing the terms of his/her retainer. In short, a business agreement.
- Be sure you have a receipt and/or statement from your attorney showing the funds on account and what was expected or intended to be completed for your money.
- Make sure you understand your case and what is being done for you.
- Pay attention to the case as best you can, even if an attorney says "leave it all to me." Ask questions if you get a sense that the attorney is angry that you are asking questions.
- Get copies, hard copy as well as electronic format.
6 . Communicate with your attorney regularly and in writing. Some lawyers want things discussed in person or by phone. Most successful litigators today tend to be e-mailers, while many transactional lawyers often want to be seen.
- If you are advised by your attorney to do something – do it. Do not ignore advice!
- If you see a problem – respond quickly – even if it is, "we are working on it – bear with us" – at least you’re communicating.
- Read your attorney’s communication back to you. Often they will deny communications or simply not recall sending them or writing them because they never did. Put aside that you have hearings, meetings, etc.
- When necessary – perform a check-up and review of the document/communication – ask yourself if this what you intended to ask or say.