Personal injury lawyer Brien Roche has been practicing law for over 40 years. He has tried hundreds of jury cases to conclusion. He is the author of three well-respected legal texts. The first of those is the Virginia Torts Case Finder. That book was published by Lexis Nexis. Lexis Nexis is one of the largest legal publishers in the world. It is a book of over 800 pages summarizing Virginia Tort law. Objections is a book published by the Virginia Law Foundation which is the Continuing Legal Education arm of the Virginia State Bar. Law 101 was published by Source Books over 30 years ago. It has sold over 30,000 copies. It is intended to be a primer for people interested in learning about the law.
Why Are Legal Malpractice Claims Different?
Legal malpractice claims are probably one of the most difficult civil claims to pursue. That is the case for a number of reasons.
Some people think that legal malpractice claims may be assigned. That is, they think that your legal malpractice claim against your lawyer can be assigned to another party for some consideration. One of the oddities of these claims is that they cannot be assigned. That is, you cannot sell your legal malpractice claim to another person. The reason for that is that the attorney-client relationship is considered to be special. It is considered to be personal. It is considered to be confidential. Therefore, you cannot assign it. That means you cannot sell it. It is either yours or it’s nobody’s.
Proving Substandard Behavior in Your Legal Malpractice Claim
One of the first things that you have to prove in a legal malpractice claim is that the lawyer’s behavior was substandard. To prove that it was substandard, you have to show what the standard is. The standard is also called “the standard of care”. It is the standard by which that lawyer in that circumstance is governed.
To prove that standard of care, you normally are going to need another attorney with knowledge of that particular specialty to testify as to what the standard of care is.
A professional person is not held to the highest standard of care. But nor can they operate at the lowest standard of care. They are expected to operate in that broad middle swath referred to as “what a reasonable practitioner would do in that circumstance”.
Proving a Breach of the Standard of Care
Once you’ve established what the standard is, then you have to show that it was breached or violated. Some violations are what are called “per se” violations. A per se violation would be such a thing as not filing a lawsuit within the statute of limitations. That is a per se violation. You don’t need an expert witness to prove what the standard of care was in that instance. The standard of care speaks for itself, i.e., you have to file the lawsuit within the time allowed.
Lack of Clarity in Proving Legal Malpractice
Sometimes the law is unclear. If the law is unclear on a particular subject, the lawyer probably cannot be faulted for not grasping what the law is. Should the lawyer have known that the law was unclear? The answer to that is yes. Should the lawyer have disclosed that lack of clarity to the client? The answer is yes. The failure to do the latter may be malpractice. The failure to understand correctly what the law was in that circumstance may not be malpractice because of the lack of clarity.
Judgment Calls
Frequently in handling a case, a lawyer needs to exercise professional judgment. Professional judgment is just that. The fact that one lawyer decided to go one way with a case where another lawyer may have gone a different way with a case does not necessarily mean the first lawyer committed malpractice. It may be that both courses of action are within the standard of care. It is simply that your lawyer exercised judgment to go one way. Another lawyer would have exercised judgment to go a different way.
In the absence of a “bright line rule” as to which way the lawyer should have gone, any legal malpractice claim based on that issue may be a tough one.