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The Case Within A Case: What is Legal Malpractice Really?

When an attorney fails in his or her duties, the client is often left in shock, without an idea of what to do next Whether the attorney failed to file a case or important document on time which lost the case, or they neglected some essential aspect of a contract or trust so that it does not reflect the intentions of the parties, it can feel like a disaster for the client. Sometimes they client is not fully apprised of reasons for the unfavorable outcome and sometime the attorney will fail to admit responsibility. When the reality sets in that the attorney has done something wrong, a client is typically very confused at the steps necessary to prove legal malpractice has occurred and obtain the justice they were originally entitled to. Ball and Bonholtzer can provide a unique opportunity to help because they have represented both attorneys and clients in legal malpractice disputes.

While there are technically four elements that need to be proven-duty, breach of duty, causation and damages-in legal malpractice cases, typically only breach of duty and causation are at issue. Duty of an attorney to his or her client is implied from the attorney-client relationship, and for the most part damages are evident, as this is the measure of the harm that the attorney's malpractice has caused. Where the battle rages for legal malpractice cases is with the breach of duty and causation elements. Those are the two essential levels of the case within a case.

The first level issue in a legal malpractice case is whether the attorney was negligent. . The court in Unigard Ins. Group v. O'Flaherty & Belgum, 38 Cal.App.4th 1229, explained the standard for proving breach of duty. That court held the central test is whether the attorney failed to use "such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." This is often referred to as "the standard of care" and basically means that to find an attorney negligent it is required to prove that the attorney's conduct fell below that which would be expected from a reasonably competent attorney in the legal community. Typically expert testimony of a similarly situated lawyer in the same field is necessary to establish negligence Sometimes the failure of the attorney is so clear that no expert opinion is necessary.

Once negligence is established, the second requirement is proving the client would have obtained a more favorable result had the attorney not been neglignent. This level is more complex and is referred to as "causation". Simply put, it is the measure of harm that the attorney's negligence caused. This means that the maximum recovery against an attorney, except in extraordinary circumstances such as fraud and breach of fiduciary duty, will be the value of the original case. There is usually no recovery for emotional distress damages caused by legal malpractice. An example helps to illustrate the point. Under the Labor Code, a dependent spouse of a worker killed as a result of a work-related injury is typically entitled to $250,000. In this case, if a worker's compensation attorney fails to file a death benefits claim under the Labor Code within the allotted time period, then his mistake costs the client $250,000. As a result, the maximum recovery for this type of legal malpractice action would be the $250,000 that the client should have originally received.

As a practical matter, the way this is played out in court is that the judge or jury first decides whether or not the attorney was negligent. Then, if they find negligence, that judge or jury decides that what a reasonable judge or jury would have done had the case progressed. If the underlying issue originally was a factual question that would have gone to a tribunal rather than a judge, it is the judge or jury who must decide what a reasonable tribunal would have done. This means that just because a lawyer misses a statute of limitations on a disputed fault auto accident, it does not make it a slam dunk liability against the attorney, the client must prove, usually by way of trial that they would have prevailed on the underlying case had the attorney not committed malpractice.

There are strict time limitations for filing a complaint against an attorney. If a victim fells a lawyer mishandled your case they should not hesitate in seeking expert advice.

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