Legal Malpractice can take place in in many different circumstances that deserve compensation.
Here are several examples of legal malpractice that often occurs:
- A lawyer settling a personal injury claim for an inadequate amount, or without client’s authorization.
- Forcing a client to settle their case under urgent circumstances caused by the lawyer’s negligence, or recommending settlement without advising the client of all reasonable alternatives and likely outcomes if other options are pursued.
- Causing a client’s rights to be lost or significantly reducing their recovery because the lawyer did not act diligently, such as by letting the Statute of Limitations expire, or failing to prove all the types of damages a client sustained in their case.
- Failing to properly investigate and prepare the case, such as by failing to preserve important evidence.
- Failing to hire competent qualified experts to help support your case.
- Failing to comply with Court rules and deadlines.
- Acting in a conflict of interest, that causes a client’s loss.
- Failing to know the applicable law that governs the rights and responsibilities in your case.
- Settling a case without a client’s specific informed and voluntary consent.
- Failing to advise the client of important consequences of settlement, both direct and indirect, such as causing the loss of eligibility for other benefits like Medicaid or SSI unless special arrangements are first made for the handling of the case proceeds.
- Engaging in unethical conduct, or even criminal conduct.
- Abandoning a client at a critical stage of the case when there is inadequate time left to competently prepare the case for trial, often subjecting the case to potential “litigation catastrophe” or no recovery, unless a nominal settlement is accepted.
- Threatening a client that they will quit the case and require the client to act as their own attorney, on the eve of trial, unless the full balance of an agreed upon fee is paid immediately.
Legal Malpractice cases involve complex issues and should be undertaken only by an experienced trial attorney who is fully familiar with all aspects of the specialized area of legal malpractice law, as well as with the law governing the original case out of which the malpractice arose.
Legal malpractice is professional negligence in the exercise of the attorney’s duty of care requiring him or her to comply with the standard of knowledge, skill and care which attorneys of ordinary ability and skill possess and exercise in the representation of a client. To establish legal malpractice, a plaintiff must show (1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation, that damages were suffered as a result of the attorney’s breach of a duty or, in other words, the plaintiff must show by a preponderance of the evidence that the loss claimed was a forseeable consequence of the breach.
This procedure is referred to as a “case within a case” or trial within a trial, in which the plaintiff presents the evidence that would have been submitted if the case had been properly conducted. A court may allow some variation of the method of proofs – in some cases, through testimony by expert witnesses where the passage of time has caused some evidence to be lost or witnesses to become no longer available. Regardless of the evidence and methods of proof utilized, the plaintiff must prove that the result would have been better; i.e. that he or she would have won the underlying case or the result would have been for a greater amount recovered. In a professional negligence action, an expert is not required if “the average layperson could apply his or her general understanding and knowledge to find that the defendant” breached a duty of care. However, because the duties a lawyer owes to his client are not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach. It is only in rare cases that expert testimony is not required in legal malpractice actions.
The Deadline for filing Legal Malpractice Claims in New Jersey is Six Years.
The statute of limitations for filing a legal malpractice complaint in New Jersey is six (6) years. It does not begin to run until the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim. In cases in which a client would not reasonably be aware of the underlying factual basis for a claim, New Jersey courts apply the “discovery rule” which focuses on an injured party’s knowledge concerning the origin and existence of his or her injuries or damages. Such knowledge involves two key elements, injury and fault. The discovery rule then includes two types of plaintiffs: those who do not become aware of their injury until after the statute of limitations has expired, and those who are aware of their injury but do not know that it may be attributable to the fault of another. Both may be protected, and their claim can sometimes go forward – even when the malpractice took place more than six (6) years before filing suit, based on the specific facts and circumstances of the claim.