Proving A Case Could Not Have Been Won
In Louisiana, it is not necessary to prove your original case twice. Jenkis vs. Saint Paul holds, “Once the Plaintiff establishes a prima facie case of negligence on the part of the defendant attorney, the defendant attorney has to come forward and prove that the case could not have been won.” In other words, your original attorney who you are suing would have to prove your case would have been lost regardless of the alleged legal malpractice.
Because proving the underlying case could not have won requires a very high standard of proof, it’s rarely possible to prove.
How Long Does Someone Have In Louisiana To File A Legal Malpractice Claim?
In Louisiana, you have a one-year prescriptive article, which means you have to file your suit within one year of your being injured and/or damaged. If you didn’t know your attorney was negligent, you have one year from your knowledge of the negligence to submit a claim.
However, Louisiana has a doctrine called Contra Non-Valentem which means that prescription doesn’t run against someone who doesn’t know they have a claim, but no more than 3 years can have passed or the case is dead regardless of lack of knowledge.
In Louisiana, we also have something called the preemption which is a statute that says regardless of when you knew or should have known about the legal malpractice, you have three years from the date the attorney committed the malpractice act to submit a legal malpractice claim against that attorney.
Once the three years have passed, you can’t submit a claim against the lawyer. The only exception to this is in situations involving fraud.
To clarify, this time limit puts you in the situation where even if the original lawyer is still representing you and trying to undo the legal malpractice or trying to get a favorable result, you have to file a suit against this original lawyer within a year – or within three years if you did not know about the legal malpractice within the one year.
The Attorney Will Know You Are Suing
The attorney you sue will be aware of your claim. A common practice is for your new attorney to send the original attorney, who you will sue, a letter. This letter will:
- Make him aware of the problem with the case,
- Ask for the name of his insurance carrier,
- Allow your new attorney to say that he or she will work with his insurance carrier regarding the problem with the case.
Unfortunately, very few states require attorneys to purchase and maintain malpractice insurance, Louisiana included. A lot of attorneys don’t have malpractice insurance, even though the premiums are very reasonable for the amount of coverage provided.
Most of the legal malpractice insurance for Louisiana attorneys is written through CNA. They are an excellent insurance company that looks out for the attorneys they represent, usually bending over backward to get the case settled.
Collecting From An Attorney Being Sued Who Does Not Have Malpractice Insurance
If the attorney you are suing does not have malpractice insurance, then you have to collect as you would from any ordinary debtor who doesn’t have insurance coverage. There might be assets to seize and/or wages to garnish which is a difficult and unpleasant action to take.
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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