Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

Crime and Punishment

I can’t get too excited about victimless crimes, that is to say crimes in which the only victim is the person committing it. Those who want to self-destruct – provided the consequences are not shouldered by others – have the right to do it. Everyone has the moral responsibility for their own person.

Crimes against others is another matter. Nobody has the right to inflict physical harm on another. Nor does anyone have the right to harm us emotionally or economically. There are degrees of damage, obviously. Defamation does not bring the harm that torture, rape or murder does. In a just world, the punishment must fit the crime.

Perfect justice must begin with absolute proof of guilt. Such is often not the case as evidenced by the numerous prisoners exonerated by DNA testing. Punishment meted out unfairly is one of the cruelest forms of torture. The desire to give innocence every chance to emerge is perhaps in large measure the reason our criminal justice system often bogs down with technicalities and loopholes.

If a person is guilty of violent crime what do we do then? The first step in a rational approach is to decide whether we want violent criminals to be free to roam our streets. We could be “kind and understanding” and let them go after a little counseling. But the evidence does not demonstrate that works. To be safe we’d all have to arm ourselves as increasing numbers of violent criminals roamed the streets.

If we are to protect ourselves from such criminals, there are two logical choices:

1. We lock them away in a box six feet under ground after executing them. The most just way to do the killing is exactly the way they did it to their victim. That is a permanent solution, sure and just but it makes me uneasy since there is almost always the question of true guilt.

2. We lock them away in some type of secure institution. Since I am trying to come up with a logical solution, that institution would not be our present prison system.

The second option leaves room for the possibility of exoneration with new exculpatory evidence. But if not prison, what? Criminals should be put on secure restitution work farms instead. There they will toil producing useful labor or goods for society commensurate with the damage they have done. The victim’s medical bills, lost work and incapacities must be paid for by the offender. Moreover, all the costs to society for investigations, trials and room and board while incarcerated must be paid. (A great motivation for those guilty to admit it and reduce the legal costs.) The time it takes for economic restitution would by and large dictate the length of the term. For example, if you attack another, incapacitating them, then you get to spend whatever time is necessary earning the money to take care of them. Those who take another’s life must substitute their own life with a lifetime of productive work to repay society and the victim’s family.

Isn’t this an obvious solution? Mere imprisonment with society picking up the tab for the police and legal work and the maintenance of the criminal is nuts. Why should the victim and society pay for the evils of the wrongdoer?

How do you force someone in prison to work off his or her debt? Give them a choice. Either do it or go without food and shelter. That is the law that works throughout nature so why not apply it to humans? How do you maintain discipline on the farm? Well, a hard day’s work will leave little energy for much more than rest. As it is now, prisoners sitting in cells all day have nothing other to do with their energy than scheme more wrongdoing. With my idea those who are a problem get penalized with an extension of their stay and longer work shifts.

This is a fair and just way to deter crime and offset the damage created by it. It does not have the potential of unjustly taking the life of another since time would be provided for proof of innocence. And I’m not talking chain gang here, but rather passable work and living conditions with the product of labor going where it should, to the victims and society. U.S. companies are always looking for a cheaper labor force. Well here it is, right on our own shores numbering in the tens of thousands.
There is nothing better to sober someone up and drain them of the energy to think up nefarious deeds than a hard day’s work. For minor offenders who have a stint in these restitution farms and are then released, they will know what work is, actually improve their resume, spread the word on the street that crime means hard work and be motivated not to return. If they repeat offend, then society will not be the one to suffer. Criminals should be self-maintaining, even a profit center rather than an economic sinkhole.

Our present penal system does not work. It is a huge and unjust cost to society. To many it neither serves as punishment nor deterrent. About three quarters of all U.S. prison space has been built in the last decade. Just in California the chances that a person either lives or works in a prison is 1 in 200.

It’s a crazy state of affairs. I wish I could be warden of the world tomorrow and fix it all.

Finding a Law Firm: Helpful Facts You Should Know

People who need legal advice or assistance know the importance of a reputable law firm. Knowing how to find the best law office in your area is very important.

What Is a Law Firm?

A law firm is apparently a business entity that aims to provide legal services to its clients. This type of business is composed of one or more lawyers that are hired by the firm. Generally, the lawyers in a firm provide legal representation to clients and offer legal advice to other businesses. Typically, a law office renders advice about the legal rights and responsibilities of a corporation or company.

How to Find a Reliable Law Firm?

For people who have been victims of fraud or other crimes, a law office can come to the rescue to solve such matter. These days, countless law offices are available and ready to serve at all time. However, finding a reputable one is truly a daunting task. Searching for a reliable law firm requires time and effort, however with the right knowledge you will not have a hard time in looking for the best option. Here are the important factors to consider in finding a reliable law office.

Proficiency in the Field of Law – The first thing to consider is to search for a law office based on your legal issues. The truth is, law has different categories. You may look for a lawyer to advice you on dealing with criminal law or commercial litigation and other legal matters. It is indeed very essential to know how to pick a particular law firm with specialties on the field that is related to your concern. The best and effortless way to find a law office is to browse online. It can save you time and money as well.

Real World Legal Advice – Mostly, lawyers deal professionally with their clients. They provide legal advices as part of their work and responsibilities. However, as much as possible, you would like to have a law office that can give you a lawyer who shows utmost concern on your case. This kind of lawyer typically explains the legal processes in most convenient way so that the client can easily understand the legal jargons and processes.

Respectable Track Record – Doing business with a law office requires you to spend enough money for it. Since you are spending money, you must opt for the best law office that has a respectable track record. You can do a background check by knowing how many successful cases they have already won for the past years. Although this process requires much effort on your behalf, however it helps you to come up with good decisions. This can also offer you great benefits in the long run.

Facing legal issues in today’s world is not a hindrance for everyone to achieve the right justice. A solution is always present with the help of a highly reliable and professional lawyers to defend you at all aspect of the law. The only thing to do is to find the right law firm that can answer your needs.

Reducing Gun Crime

Facts and Figures

Gun crime in the UK makes up less than 0.5% of all crime recorded by the police. Although this is a small statistic, the use of guns leads to severe bodily harm or death, of which there were 455 of these last year.

Punishment

In order to reduce gun crime there are several laws in place to act as punitive and deterrent measures. Possession of an illegal firearm alone, incurs a minimum of 5 years in jail. The use or possession of an air weapon or imitation firearm in public is also now illegal and the manufacture of imitation firearms has become prohibited too. The age at which an air weapon can be purchased has been increased to 17 years of age and some air weapons that can easily be converted into firing weapons have become prohibited. Most of these laws come under the 1996 Violent Crime Reduction Act.

Reducing Supply

Further actions taken to reduce gun crime are to reduce the supply of guns to the UK. According to the Lord Chief Justice, it is because guns are so readily available that there is still gun crime in the UK and we need to tackle this problem more effectively. This can be done by tightening security at UK airports to prevent smuggling past customs and also monitoring parcels that are shipped into the UK.

Gun Culture

A lot of gun crime is associated with gang culture and illegal drug trade and so by addressing these problems there is hope that this will also reduce the use of guns. ‘Connected’ is a government initiative to support communities in standing up against the use of guns in their local areas.