What is Legal Malpractice?
When an attorney does not live up to those standards, legal malpractice may result. To prove a legal malpractice case, a client must show that his or her former attorney committed an act of negligence that caused the client to suffer financial losses in the underlying case. For example, if a former attorney failed to file a lawsuit within the time allowed under the applicable statute of limitations, which resulted in that lawsuit being barred forever by the statute of limitations, the attorney may be responsible for any damages attributable to the dismissal of that lawsuit (after all, the plaintiff was not at fault for that dismissal – the attorney was). Likewise, if a divorce attorney recommended such an outcome, rather than offering the proper advice, he/she may be liable for any resulting damages. Legal malpractice, under New Jersey law, is defined as "a deviation from the accepted standard of practice by a lawyer that proximately causes the damages complained of by the client." The legal standard for malpractice consists of three prongs: (1) a duty of care owed to the client, (2) a breach of that duty, and (3) harm or damages sustained by the client that were proximately caused by the attorney’s negligence. A breach of duty may be established by proof that the attorney’s conduct fell below the prevailing standard of care, the breach of the standard of care caused and/or contributed to the damages claimed by the plaintiff. Breach of standard of care comprises two elements: (1) whether the attorney exercised the skills and diligence that any other reasonable commercially competent attorney would have exercised in similar circumstances (standard of care), and (2) whether the attorney’s conduct fell short of the standard of care (breach of standard) . Mack v. Potato Servs., 267 N.J. Super. 609, 615 (Law Div. 1993). To put it another way, the standard of care required of the attorney involves what actions should have been taken on behalf of a client in order to avoid injury to the client. The breach involves whether the attorney’s conduct met that standard of care. Whether the attorney’s conduct fell below the applicable standard of care requires a fact-sensitive inquiry as to what a reasonable, prudent lawyer would have done under similar circumstances. If the failure to follow a procedural rule or the failure to adhere to the practice of law has caused the client to lose money, then the attorney may be liable for malpractice. The New Jersey Rules of Professional Conduct (RPCs) provide standards of professional conduct for attorneys who practice in New Jersey. Breaches of these Rules by an attorney towards a client can result in the attorney being found liable for legal malpractice. Court rules are procedural rules that dictate the method or means of enforcing rights under a statute or contract. The New Jersey rules of Court specifically set forth the time constraints that apply in litigation. When an attorney fails to comply with the court rules, such as the statute of limitations, the statute of repose or certain notice requirements, among other things, the client may lose the ability to pursue his or her claims in a timely fashion. The adverse consequences of non-compliance with the court rules can amount to malpractice. There is no substitute for a detailed analysis of the elements of legal malpractice. The legal standard is difficult to meet, and the success of a case may rest solely on the ability of the client and his/her attorney to demonstrate how the defendant’s actions impacted them financially.
Recognizing the Indicators of Legal Malpractice
The first sign of a legal malpractice case are communications from your present or former attorney that in any way hints at their own potential culpability. Any communication about mistakes made, errors, or omissions. This is often times subtle, like saying, "my hands were tied and I could do nothing." Or: "I never had access to that evidence." Or: "What could I do, that judge always favors the other side," etc. These statements are often a harbinger of something amiss and should be noted and saved.
Secondly, if you still have your dockets and files the next sign is when documents are missing. Missing documents, like for example your interrogatory answers, will indicate difficulty. If answers seem incomplete, it can be a problem. But with missing documents, you could miss the whole basis for a case where the attorney set you up for failure by inattentiveness.
Third and finally, if you have had a client security fund or grievance filed that testimony can prove damaging to the attorney, you might be on the right track, but not in every case.
These three aspects leave you with the unpleasantness of lawsuit, and there are motions to dismiss and mediation to go through. You will have to offer your proof to show that the attorney’s negligence in fact caused you harm. As stated, they do not import a presumption of damage immediately, but they do well suggest it in most cases.
What to Do if You Think Your Lawyer Has Committed Malpractice
At the first sign of trouble, the smart money hires another attorney. If a client retains the services of another attorney to review a claim there can be no doubt that they are seriously questioning their attorney’s competence to handle a specific matter. Sometimes the answer is so obvious in hindsight that the client has no choice but to sue their attorney for legal malpractice. Often this leads to a long drawn out legal malpractice case with many pitfalls along the way. The goal is to have the client educated by a competent attorney who can analyze the underlying attorney’s representation and help the client determine if a malpractice action is warranted. Many times the client will choose not to hire the new attorney on a subsequent matters as a way of cutting billing. There are no guarantees.
When the decision is to proceed with a malpractice claim, the new attorney will evaluate the case to determine the best way to proceed. In most cases, the claimant will need to file a motion to extend the statute of limitations. Such a motion is mandatory when a legal malpractice case is filed outside the six year statute of limitations. In most instances the motion leads to additional discovery before being heard in Court. Legal malpractice motions are typically very involved with very specific requirements. A failure to comply with even the smallest detail could lead to the dismissal of the case. Legal malpractice attorneys are well aware of the stringent requirements and are able to guide their clients through the process. Failure to timely file a claim is one of the leading causes for the dismissal of legal malpractice litigation.
How to Choose a Legal Malpractice Attorney in NJ
When you need to find the best legal malpractice attorney for your case, it is important to ensure that any firm you select has the right qualifications. If your attorney does not have the specialized experience you require, then they are not right for your case. Fortunately, there are numerous talented legal malpractice attorneys available through firms that regularly litigate these challenging cases. One of the first things any potential legal malpractice attorney should be able to offer to their clients without fail is experience. Legal services are highly competitive, and law firms and society as a whole trains young associates for several years before they are ever allowed to practice law. This means that finding an experienced legal malpractice attorney who can take your case is critical. If you go with a legal malpractice attorney who has no experience, you could run into any number of problems in your case. While many law firms make claims to the contrary, New Jersey legal malpractice cases are highly specialized cases. They have special rules and restrictions that you would only know if you regularly litigate these types of cases, and there are different rules for those litigating other types of cases. It is critical to ensure that your attorney has a strong record of litigating cases on this specific practice area. Society expects law firms to behave ethically, but unfortunately that isn’t always the case. If you encounter a situation where you believe that your attorney or former attorney has violated the rules of legal ethics, you may be able to pursue a legal malpractice case. This is an area of law that is highly specialized, and as such legal malpractice attorneys need to know how to handle these cases. In addition to having the right experience and qualifications, a good legal malpractice attorney will also be able to sit down and talk to each client about their potential case during an initial consultation. During that consultation, they may ask you various questions about your situation, and you can ask them questions as well about how they plan to approach your case. The following are just a few of the many critical questions that you should ask during an initial consultation: A qualified legal malpractice attorney will know how to speak to you and can prepare a strong strategy for your case from the moment you first consult with them. A legal malpractice attorney might not be able to answer every single question immediately, but they should be able to offer a clear and logical plan that details how they intend to prepare for your case. It is important to find the right legal malpractice attorney for your case. This means ensuring that your chosen attorney has the right experience and qualifications, while also asking the right questions during an initial consultation. If you have additional questions about this practice area or the overall process, get in touch today.
Understanding the Legal Process
The legal process in a legal malpractice matter in NJ for many attorneys, former clients and for those with a grievance or an intentional tort is both lengthy and tedious. Whether the attorney defrauded the client, or just failed to file a claim is irrelevant, the process is essentially the same.
The process begins with review of a closed file with the former and/or current client. Copies of all documents are made for review, and appointment(s) are set with the attorney. This appointment is just an information gathering appointment, much like an initial consultation. The information may be used in the retainer agreement, but any identifying information removed. This information is needed for the legal malpractice attorney to research the current and former attorney in order to represent you fully.
Once all the information is gathered, the attorney must determine whether your case has merit. This may involve a litany of issues, from frivolous filing claims to actual malpractice. In any event, the attorney is required not only to spot the issue , but to do something about it.
The attorney will need to file suit in Superior Court for damages. This involves a Statement of Claim (also known as summons), and a Complaint. Your attorney may also ask for alternative relief such as specific performance. The statement must be served on the former attorney, who has thirty days to respond. Once the Statement of Claim is answered, you will need to determine whether to continue on with the case, or to settle it. Your attorney will review the options with you.
If the action continues, each party trades interrogatories, affidavits, requests for admissions, etc. Once discovery is complete, you will head into a settlement phase. Whether your case ultimately settles or goes to trial is up in the air for a determination by the attorney. A thorough understanding of the issues and available support is essential to a solid determination of when to settle and when to go to court. Once you are ready, the litigation is ready to proceed, and your attorney will litigate your issues thoroughly.
How a Legal Malpractice Attorney Can Assist You
A legal malpractice attorney in NJ is quite different than most attorneys. These attorneys are used to dealing with the more difficult areas of the law, litigation against a lawyer who was supposed to know the law. They are highly specialized in this area of practice.
They are also skilled at dealing with the law and it’s many complications, this includes Ethical rules, insurance policies, retainer agreements and expert witness testimony. Lawyers who represent other lawyers who have committed malpractice. All of this takes patience and legal knowledge.
Attorneys who represent clients in legal malpractice cases know that often, a layperson does not understand the complicated legal processes, statutes of limitation, insurance policies or other lingo when it comes to a legal malpractice case. In fact, many of these lawyers never file a case against another lawyer or go to trial.
A legal malpractice attorney knows how vital it is to explain to a potential legal malpractice client what the case will entail. The more involved the case, the longer it will take and the more costly it usually is to litigate. A trust attorney may not have the same patience or understanding for the needs of the client in explaining each step of the case.
Legal Malpractice FAQs
Do you take cases on a contingency basis?
Yes, we take on cases with an advanced agreement on fees, which can be based on a percentage of the final judgment or settlement.
I’m not from New Jersey. Can I still file a legal malpractice claim against an attorney based in NJ?
Yes. In fact, many clients we represent are from out of state . If you were represented by an attorney who is based in New Jersey, then the malpractice took place in NJ, and you may have a case.
How much time do I have to file legal malpractice?
If you or your legal representative has missed the statute of limitations period (the time allotted to file a claim), then you cannot file a legal malpractice claim. In most cases, you have six years to file a lawsuit against an attorney in New Jersey.
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