The world is a dangerous place, and people get hurt. That’s why they go to a personal injury lawyer to begin with – to obtain compensation when they have been wronged.
Their bitterness doubles when the lawyer representing them negligently damages their case. A legal injury has now been inflicted on top of the underlying damage. Some of the angriest and understandably the most suspicious people we see are those who are let down by a lawyer they trusted.
The law allows lawyers, just as with other professionals, to make certain, acceptable mistakes. The question which needs to be addressed is whether the incompetent or uncaring lawyer violated the “standard of care.” Sometimes this is easy to determine. At other times, establishing a violation can be challenging. In most cases, it is necessary to rely upon the testimony of an expert witness. That is, a lawyer of known expertise, who is respected by his or her peers in that particular legal sub-speciality.
The “Attorney Judgment Rule”
Accountants, doctors, lawyers and other professionals are required to exercise their judgment to effectively discharge their duties. They must rely on their experience, which includes familiarity with similar situations. If a lawyer acts with competence, and in good faith, it is still possible that their reasoned judgment could prove wrong. Such an error will generally be excused under the law, because hindsight judgment is not the required standard.
Lawyers are expected to utilize their best judgment, as long as their discretion is considered acceptable by other lawyers in the same specialty. It is never enough that the client simply received a poor result – something more must be shown.
Two Cases Must Be Proven – The “Case Within A Case”
When we bring a claim or lawsuit against another law office, we are required to establish more than the mere mistake. We also must prove the underlying case he or she was originally handling. We must then clearly define there was liability and measureable damages. This is the “case within a case” two-tiered process under Ohio law.
If the malpractice case does not settle, it is necessary to obtain an arbitration award or jury verdict. This may be the only way to clarify what the money damages should have been in the underlying accident claim.
Where to Go From Here
We have handled many professional malpractice cases. Most have involved attorney mistakes pertaining to the statute of limitations of some other variety of time-sensitive filing. Others have centered on negligently drafted legal documents, failure to prove essential claim elements, errors in suing the proper parties as well as a host of other miscalculations that have resulted in serious losses. Sometimes the erring lawyer has failed to keep abreast of new law, and thus their advice or litigation strategy was a step behind. Attorneys are expected to constantly monitor newly-minted legislation, as well as appellate decisions.
If your claim is too small for litigation in southwestern Ohio courts, one option is to file a complaint with the local bar association. One of their panels will investigate the matter and determine whether a formal grievance should be asserted against your former lawyer. If that occurs, the likely sanction will be public reprimand, suspension or disbarment.
Another option, with the bar association in your county, is to request Fee Arbitration. Many disputes between lawyers and their former clients have been resolved within an arbitration or mediation forum.
It is usually not wise to bring a lawsuit on your own, known as “pro se.” They can be far more involved and complex than you suspect. If you have consulted a number of lawyers, and they have been disinclined to represent you, it’s time to face facts. If there are specific weaknesses in your malpractice claim, then perhaps a disciplinary action with the local bar association would be the better strategy.
Damaged clients often wrongly believe that lawyers will only protect other lawyers. However, in the large and competitive legal arena today, many lawyers will not hesitate to sue another lawyer. The days of the old boys’ club are gone.
Many cases we have taken over, from neglectful lawyers, have involved situations where they were simply not attentive to the case or the client. These claims usually do not involve actual legal malpractice, but fall into an error known broadly as “bad lawyering.”
Delays in responsiveness, and failure to return client phone calls promptly, are sufficient to cause a rupture in the credibility which is needed for a solid attorney-client relationship.