In this article we're going to discuss legal malpractice and some basic things that you should know about it. The first thing we need to do is define exactly what legal malpractice is, legally speaking of course. Malpractice itself is a term that denotes that a person was incompetent when rendering some kind of service to another person. As a lawyer, he must render competent services to his client. Competence is defined as using skill, prudence, and diligence in rendering these services. This is referred to as "standard care." If a lawyer fails to do this he can be found guilty of legal malpractice. Not every mistake that a lawyer makes is legal malpractice. The mistake must be one that is made because the lawyer did not use skill, prudence and diligence in performing his duties. For example, if a lawyer uses a type of defense in a trial and that defense didn't work because he was unable to read the jury correctly, a difficult thing to do, he is not guilty of malpractice. He made a mistake, but an honest one. The actual harm that legal malpractice causes is defined as the client suffering something that is tangible. Maybe financial loss or a wrongful conviction. Some examples would be losing the right to file a lawsuit, maybe the dismissal of a valid lawsuit, or losing a case that should have easily been won. Emotional distress is not normally a cause for legal malpractice. However, if the lawyer committed such a blatant act like commit fraud, then emotional distress can be grounds for financial restitution. Proving malpractice is not an easy thing to do. If the case itself had no real chance of being won then proving malpractice is going to be close to impossible. Even in charges of legal malpractice the lawyer in question is always given a chance to retry the case if possible. In the retrial, the same evidence is presented. The jury must then decide, if the evidence had been properly presented in the first trial, that the outcome would have been different. Also, being able to collect must be proven. In other words, if the case was a lawsuit and the money couldn't have been collected from the defendant even if the case had been won then no legal malpractice exists, even if the lawyer bungled the case. If a lawyer's tactical decisions on how to try a case fail that is not legal malpractice. In any trial there is no guarantee of victory. As long as the lawyer did his best and prepared the best case he could, even if he miscalculated, he is not guilty of legal malpractice. Also, if a judge disagrees with a lawyers interpretation of the law he is not automatically guilty of malpractice. Interpreting the law is not a black and white thing. There are many grey areas. So just because the judge doesn't agree doesn't mean the lawyer is guilty. Many times it will take an expert witness to testify that malpractice has occurred. This is not to say that even if the witness does testify that the lawyer will ultimately be found guilty of malpractice. If you suspect you are a victim of legal malpractice you must do three things, discuss the problem with your lawyer, get a copy of your case files and then finally consult with a lawyer who specializes in malpractice cases. |
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