The Defenses The Attorneys Will Use In A Legal Malpractice Claim
There are two “steps” that an attorney may take to defend themselves against a legal malpractice claim.
Step one is to establish that there was or was not an attorney-client relationship. Step two is for the lawyer you are suing to say he didn’t do anything wrong. He made a judgment call. While the case may not have gone where he wanted it to, the outcome was reasonable under the circumstances.
Those are the only defenses – because missing deadlines are inherently a sign of legal malpractice.
An Act of Intentional Malpractice Nullifies Malpractice Insurance
If the legal malpractice was intentional, a jury would want to award you more money… but you have to be careful here.
Intentional acts of legal malpractice are excluded from insurance coverage. If you prove the lawyer intentionally committed legal malpractice, the malpractice insurance carrier will not cover the settlement.
This means that, for the sake of your claim, an attorney making an honest mistake is better than an attorney making an intentional one.
Legal Malpractice Cases Typically Settle Rather Than Go To A Jury Trial
Most cases do settle. But if a settlement can’t be reached, the case will go in front of a jury.
Taking A Legal Malpractice Case In Front Of A Jury
The outcomes of jury trials are unpredictable, but if the attorney will not pay what is a reasonable settlement figure, you have no choice but to go to trial.
Usually, the lawyers involved in the case will agree on what the case is worth and settle. The attorneys who defend legal malpractice cases are usually top-notch, which makes it easier to discuss values with experts who understand and deal with legal malpractice all the time.
The Potential Damages In A Legal Malpractice Claim
The potential damages for legal malpractice are the same as those that you would have had in the original case – had the attorney not committed malpractice.
For example, consider that your attorney forgot to file your automobile accident case. In this situation, the damages in the subsequent legal malpractice case would be pain and suffering, property damage, wage loss, past medical costs, and future medical costs.
The Legal Malpractice Case Is Worth The Same Amount As The Original Claim
In a legal malpractice lawsuit, the settlement amount should be what the original case would have been worth. If you should have been awarded $100,000 in the original case, you should be awarded $100,000 in the legal malpractice case.
There is a difference of opinions in the circuit courts in Louisiana on whether non-pecuniary damages, (such as emotional pain and suffering), are awardable in a legal malpractice case. A couple of circuits say they are awardable, and a couple of other circuits say they are not.
If you are in a circuit court that awards emotional pain and suffering, it would mean if the legal malpractice caused you pain and suffering, you should get a larger payout than in the underlying, original, case.
Do You Feel Reluctance To Sue An Attorney For Legal Malpractice?
Few clients who suspect their lawyer committed legal malpractice have reluctance in submitting a claim. But it may be that legal malpractice never occurred.
Many times, after consulting with clients, I tell them their lawyer didn’t do anything wrong – that there was no legal malpractice. If you’re not sure about whether or not to bring forward a claim, get in touch with our office for a consultation and get the insight you need.
Most Legal Malpractice Cases Are Paid On Contingency
When deciding on whether a legal malpractice case makes financial sense, it depends on how much capacity you have for delay. A claim against your lawyer is like starting the original entire case all over again. You already lost all the time involved in the first case. You do it and recover something or you don’t do it and you recover zero.
Most people don’t have much choice. Insofar as hiring us at Wimberly Law Firm, most attorneys who practice in this area do it on a contingency basis. If we’re not successful, you do not pay us anything. If we’re successful, you pay us a percentage of the settlement. Most plaintiffs do not want to do that, so how you will pay for the legal malpractice suit is open to negotiation.
A Contingency Agreement Must Be In Writing
Louisiana does have a law that if you have a contingency agreement, it has to be in writing. You cannot have an oral contingency fee agreement. The agreement has to spell out the specifics of how the contingency fee is calculated.
For more information on Legal Malpractice Law In Louisiana, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (985) 200-8466 today.
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