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You’ve been in a car accident, you’ve hired a lawyer, and now you think your lawyer may have screwed up your case. Maybe you feel like you’re not getting the attention you deserve, or maybe you think your lawyer is missing key deadlines.
Whatever the reason, if you suspect your lawyer of negligence in your car accident case, there are a few things you can do.
In this article we discuss what steps you can take to find out whether or not your lawyer has committed legal malpractice and if you have a legal malpractice case.
Clients place great trust in their attorneys to use their experience, education, and training to pursue their clients’ cases both competently and professionally. If your attorneys breach this fiduciary duty and that breach affects the outcome of your case, you may be a victim of legal malpractice and can consider taking the next steps to sue your lawyer.
Read on to learn more about legal malpractice cases.
When you are wondering whether you have a legal malpractice case, it is important to know what does and does not constitute legal malpractice before you decide on suing a lawyer for malpractice.
Common examples of attorney malpractice include:
Missing the statute of limitations filing deadline.
Misuse of client funds and fraud.
Padded and fraudulent billing.
Settling a case without client consent.
Material conflicts of interest.
Not responding to a dispositive motion.
Failing to add critical claims or defendants.
Repeated and prolonged failure to communicate.
Without additional evidence of wrongdoing, some common examples of behavior that might be bad for business and demonstrate a poor attorney client relationship but are NOT attorney malpractice include:
Not immediately answering your phone call or email.
Bad outcome in your case.
Your attorney is friends with opposing counsel.
For a more in depth look at what are and are NOT considered valid legal malpractice claims, read our article, What is Considered Malpractice for an Attorney?
Every state plus the District of Columbia require that their attorneys follow a written canon of professional standards. In Illinois, those are called the Illinois Supreme Court Rules of Professional Conduct. Important rules for attorney professional standards include:
1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill thoroughness and preparation necessary for representation.
1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.
1.4 Communication A lawyer shall 1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent…; 2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; 3) keep the client reasonably informed about the status of the matter; 4) promptly comply with reasonable requests for information; and 5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
1.15 Safekeeping Property A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be deposited in one or more separate and identifiable interest- or dividend-bearing client trust accounts maintained at an eligible financial institution in the state where the lawyer’s office is situated, or elsewhere with the informed consent of the client or third person…
Personal injury cases are a marathon, not a sprint. It is not unusual for cases to take months to resolve. More contentious cases may take years. Protracted battles do not necessarily mean your attorney is not doing their job.
Likewise, just because there were some motions or depositions that did not go your way does not necessarily mean your attorney is mishandling your case. Remember: proving a legal malpractice claim is not an easy feat.
Below are some steps you can take if you suspect your attorney is committing or has committed legal malpractice in your injury case:
Do not jump to conclusions! Even great lawyers lose motions and even entire cases. If you suspect something went awry in your case, the best course of action is to make sure you continue pursuing your case because you have a duty to mitigate any damages. Gather all of the facts and preserve all documents in the case so that you can have easy access to them later.
Start by sitting down and having a meeting, call, or video conference with your attorney. That way you can review the file together and learn about the case status and why that particular aspect of the case did not go your way. Remember, the other side is also represented by an attorney who is trying to win the case for their client.
Minor battles are won and lost in all cases, so you should focus on the major issues such as dispositive motions, barring critical experts or evidence, and trial preparation. Once you speak with your lawyer, you may feel better about your case once you have a more clear understanding of the circumstances.
Having a conversation can go a long way toward clearing up any issues you have with your case and reassuring you that you do not have grounds for a malpractice claim.
Your attorney does have a duty to provide you with updates on the status of your case. While that does not mean they are required to email you every day or answer your telephone call at all hours of the night, they should be responding to your inquiries, especially at critical phases of the case such as party depositions, dispositive motions, and trial preparation and trial.
If you are still not satisfied after speaking with your attorney, it may be time to get a second opinion about your case. Just like getting a second opinion from a doctor, a different lawyer will have a fresh perspective on the case and may be able to offer some guidance about what steps to take.
Even if your attorney did commit malpractice, you cannot simply abandon your case. You have a duty to mitigate damages, which means you must continue pursuing your case to obtain the best results possible despite your attorney’s incompetence.
This may include obtaining another attorney or law firm to see the case through and starting a new attorney client relationship.
Proving legal malpractice and suing your lawyer for malpractice is no easy task because you must not only show that your attorney committed malpractice, you must also show that the attorney’s negligence materially affected the outcome of your case.
To recover compensation in a legal malpractice cases, you must prove each of the following:
Your attorney owed you a fiduciary duty of care. If you are a client, this element will be easy to prove.
Your attorney breached their fiduciary duty of care. Lawyers are expected to follow a canon of professional ethics and to pursue your case using their expertise, training, and education. If your attorney forgot to file a critical motion or failed to take any depositions, they may have committed malpractice. Conversely, while rude behavior is bad for an attorney’s business, it is not legal malpractice.
But for the attorney’s breach, your case results would have been materially different. This element can be the most difficult to prove. Your will only be able to recover damages if your lawyer’s incompetence made the difference in your case. If your underlying claim was not a winner from the start, you will not prevail in a legal malpractice suit.
Damages. You must also be able to prove damages. If you were forced to settle your case for a few thousand dollars when it should have been worth over a million dollars, your recovery will be the difference between the fair value of your case and the value you settled the case for. As an important note, the client has their own duty to mitigate damages, which means that if their attorney made a mistake early in the case, the client will still have to pursue the case to obtain the best results possible despite the attorney error.
If you’re not happy with how your lawyer is handling your case, you can get a second opinion with a legal malpractice attorney.
At The Kryder Law Group, we offer a free consultation so that you can learn more about how we would handle your case and decide if we’re the right law firm for you.
During your free case evaluation with our legal malpractice attorneys, you can get a second opinion about your injury case and whether you have a malpractice case or not.
There are many signs that your attorney is not doing a good job, but some common ones include:
Not returning your phone calls or emails in a timely manner.
Failing to keep you updated on the status of your case.
Not being prepared for court hearings or depositions.
Not investigating your case or gathering evidence.
Not being aggressive in negotiations with the insurance company.