ROSENBAUM & ROSENBAUM, P.C. | November 22, 2020 | Personal Injury
Hiring a personal injury attorney to handle your accident claim can be a difficult decision. First, you may not be sure whether you need to hire a personal injury lawyer. Second, you might have trouble finding the right personal injury lawyer to handle your case.
Most people who decide to hire an accident attorney interview several lawyers before deciding which attorney to hire. They read online reviews, ask friends for references, and check for complaints. When they choose an attorney, they place their faith and trust in their lawyer to protect their best interests and legal rights.
Consequences of Legal Mistakes and Errors
Attorneys cannot guarantee a positive outcome in a case. For example, a car accident lawyer cannot tell you that you will receive a certain amount for your claim. Likewise, a product liability lawyer cannot guarantee that a manufacturer will be held liable for a defective airbag or defective drug.
A client might not receive the outcome they desire for their case. In some cases, the client may have had unreasonable expectations for the outcome of the case. When a client has unreasonable expectations, any attorney they hire will fall short of their expectations.
However, there may be some instances in which an attorney makes mistakes or is negligent in handling a case. For individuals with personal injury cases, legal malpractice can result in a claim being denied or the person does not receive full compensation for all damages.
What is Legal Malpractice in New York?
Legal malpractice occurs when an attorney makes an error or is negligent in representing a client, and the client is harmed.
Examples of legal malpractice include, but are not limited to:
- Failing to check for conflicts of interest before accepting a case and failing to disclose conflicts of interest
- Missing deadlines (statutes of limitations) for filing personal injury lawsuits
- Failing to conduct an adequate investigation and/or discovery of evidence
- Failing to disclose a settlement offer with the client or accepting a settlement offer without the client’s consent
- Violating the Rules of Professional Conduct
- Failure to conduct comprehensive legal research into statutes and case law related to the client’s case
- Practicing under the influence of drugs or alcohol
- Failing to provide effective and adequate communication with the client
- Mishandling the client’s funds (trust account)
- Failure to perform the services outlined in the retainer agreement
- Failing to provide the standard of legal services required by the duty of care owed to the client (general incompetency)
- Mathematical errors that result in harm to the client
- Losing or mishandling evidence necessary to prove the case
Any conduct in which the attorney fails to exercise reasonable care could rise to the level of legal malpractice.
Do I Have a Legal Malpractice Case?
To determine whether you have a legal malpractice case against your personal injury lawyer, another attorney would need to review the facts and circumstances of your claim. There are specific requirements to prove legal malpractice. Generally, you must prove the following legal elements to win a legal malpractice case:
The Lawyer Owed You a Duty of Care
When you retain an attorney to handle your case, the attorney owes you a duty of care to act in your best interest. A copy of a written retainer agreement or evidence that you hired the attorney is typically sufficient to establish the attorney-client relationship, which results in a duty of care.
Breach of the Duty of Care
The attorney committed negligent acts, errors, omissions, or other wrongdoing while handling your case. Depending on the allegations, you may need to prove that the attorney’s conduct or actions failed to meet the reasonable care standard to establish a breach of the duty of care.
Causation and Damages
Not all errors lead to damages. The final element is to prove that the breach of the duty of care was a direct and proximate cause of harm and damage.
For example, the attorney missed the deadline for filing a lawsuit for your slip and fall accident. Missing the deadline caused you to lose your right to pursue compensation for your injuries.
Another example might be failing to confirm the medical expenses you incurred with each of your health care providers in your motorcycle accident. Failing to obtain evidence of medical bills resulted in your settlement amount being thousands of dollars lower than it would have been had the correct amounts been included in the claim.
What Can I Do if My Attorney Committed Legal Malpractice?
You can file a lawsuit seeking compensation for the damages caused by the legal malpractice. However, you have the burden of proving your attorney committed errors or wrongdoing that led to damages.
For that reason, it is best to speak with a lawyer about your case as soon as possible. The statute of limitations for legal malpractice in New York is three years.