Common Mistakes Leading to Attorney Malpractice
What are some of the common mistakes lawyers make that can be Florida legal malpractice?
Although there is no precise definition of legal malpractice, generally a lawyer commits negligence when he or she fails to use reasonable care in proving legal services to a client. Reasonable care on the part of a lawyer is that level of care and skill which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful attorneys.
Whether any particular conduct by a lawyer is negligent and whether that negligence is a legal cause of damage can be quite difficult to determine. Some of the more common types of negligence involve the following:
- The attorney failed to file a lawsuit within the time required by law. All claims must be filed within a specific period of time, generally known as the statute of limitations. If a claim is not brought within the statute of limitations period applicable to the particular type of claim, the case will be dismissed by the court upon a motion by the defendant, regardless of its merit.
- The attorney failed to sue the correct people within the period required by law.
- The case was dismissed or lost because the lawyer failed to diligently pursue the case.
- The attorney failed to perform adequate and reasonable discovery to prepare the case for trial.
- The attorney “dumped” the case just before the statute of limitations period expired and, because of the closeness in time, the client is unable to obtain counsel.
- The attorney did not communicate a settlement offer from the other side which would have been accepted.
These are obviously only a few listing of the types of mistakes that lawyers can make in representing clients. Not all errors are negligent and, even if negligence occurred, it does not mean that you have a viable claim that can be brought.
Any lawsuit and any representation of a client involves a degree of judgment made by a lawyer. Typically, a client should be involved in all of the decision-making at critical points of any claim or any representation; however, there are many decisions that a lawyer must make and is permitted to make without consultation with the client. Frequently, for instance, it is a matter of an attorney’s judgment as to whether to call a specific witness at trial or whether to depose a particular witness. While it is common to second-guess after a bad result at trial, such decisions, such decisions are rarely, if ever, the cause for a legal malpractice claim and are protected by what is called “judgmental immunity.” In short, a legal malpractice claim cannot be based upon a lawyer’s good faith, reasonable exercise of judgment on an issue which does not require consultation with and a decision by the client.
A legal negligence suit requires not only that the attorney was negligent, but that the negligence was a legal cause of the loss or damage to the client. The element of “legal cause” in proving a case of legal malpractice requires proof that what the attorney did wrong more likely than not affected the result of the work he was hired to perform. An attorney is not negligent simply because a judge or a jury rules against the client, but only if the adverse outcome was caused by some negligent conduct of the attorney. This feature is one reason why legal malpractice suits are so complicated and generally require a legal malpractice plaintiff to prove what is referred to as “the case within the case.”
Typically, not only must a plaintiff suing an attorney prove that the attorney was negligent, but he must also prove that the attorney’s negligence caused an injury. If the injury was a loss of the case at trial, a reduced settlement, or a smaller verdict than would otherwise have been rendered, the law requires the plaintiff in a legal malpractice case to prove that if the attorney had properly performed his responsibilities, then the outcome would have been a different and more favorable result.
I have settled my case but I believe my lawyer was negligent. Can I do anything?
We sometimes receive calls from clients who have settled their claim, but feel that their lawyer was negligent and that the negligence affected the ability to pursue the case and required the case to be settled for an incorrect or unfair amount. While legal malpractice suits that involve a claim that a settlement was too low or that a settlement was required for an inadequate figure because a lawyer was negligent are possible, they are extremely difficult to pursue successfully. Many jurors considering such a claim would have the initial (often correct) impression that the plaintiff simply changed their mind about settlement and is now suffering from “buyer’s remorse”.
Without written proof of the reason for the settlement, legal malpractice cases complaining about a settlement often become swearing matches between the former lawyer and the client that are typically lost by the plaintiff. Typically, there is written materials that tend to prove that any settlement was voluntary and reasonable (settlement agreement, release, mediation statements, closing statements, etcetera). As with any other legal malpractice claim, you must be able to show not only that the attorney’s conduct was negligent, but that the negligence proximately caused you to receive a settlement amount that was different than would have otherwise been the case in the absence of the negligence. Again, while claims of this type are possible, they are extremely difficult to pursue unless there is some adequate documentation regarding both the negligence and the result that the negligence had on the settlement decision, such cases can only rarely be pursued.
How long do you have to sue a lawyer?
The statute of limitations for suing a lawyer is two (2) years.
Section 95.11(4)(a), Florida Statutes, provides that in an action for professional malpractice, other than medical malpractice, whether founded on contract or tort the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.
Certain actions may toll or delay a statute of limitations from expiring or commencing. For example, generally speaking, if a lawyer was negligent in the representation of a client at trial and, because of that negligence, lost the trial, the statute of limitations typically does not begin to run until trial is completely finished, including all appeals.
The computation of when a statute of limitations begins and when it ends with respect to a claim of legal malpractice can be extremely complicated and is well beyond what can be explained in this web site. The result in many cases regarding the commencement or expiration of the statute of limitations is often determined by events which seem quite minor. Frequently, there are substantial disputes during litigation regarding a factual circumstance which, if proven, might bar a plaintiff’s claim. We always urge our clients to pursue their claims at the earliest possible time to avoid the development of any unsuspected facts that might result in barring the client’s claim.