Legal malpractice is something that lawyers never like to talk about, but it does exist. If you have been injured as a result of attorney malpractice then you should consult a Tysons legal malpractice lawyer because you may have a basis for making a claim. The elements of a legal malpractice claim are similar to those of a medical malpractice claim.
You must prove that the conduct was substandard. In addition, you must show that substandard conduct on the attorney’s part caused injury to you. As is true in any professional liability claim, you must establish the standard of care. You must also prove a breach of the standard of care, causation, and damages. Contact a personal injury attorney at Brien Roche Law Firm today.
How to Find a Legal Malpractice Lawyer in the Area?
There are a number of ways to locate a competent legal malpractice lawyer in Tysons. Probably the best way is simply by word of mouth. Other than that, internet searches of course will produce potential names. As to any attorney that you focus on, you want to know two things: experience in terms of handling legal malpractice cases; experience in terms of handling the underlying subject matter that was the source of the legal malpractice. For instance if the underlying subject matter was a contract issue, you want to know what that attorney’s experience is in terms of dealing with contract matters. If the underlying fault of the attorney related to an employment matter, you want to know what the experience is of the attorney in handling employment matters.
What Types of Legal Malpractice Cases are There?
Legal malpractice cases can be categorized in many different ways. They of course relate to the underlying subject matter that the attorney was handling. More broadly however they relate to really two subject areas: litigation and non-litigation. If the underlying case was a litigation matter, then there is one set of rules that may apply. If the underlying case was a non-litigation matter, there could be a different set of rules that apply. Our attorney handles a wide range of legal malpractice cases in Tysons.
Who Do You Sue in a Legal Malpractice Matter?
That may well be the most difficult question. Obviously you sue the attorney that you hired. You may also have to sue the attorney’s law firm. In particular if the law firm is a professional entity that is different than the attorney himself. The attorney’s business may be incorporated or it may be operating under the name of some entity. That entity typically would have to be sued. If the entity is a partnership then you may be able to sue the partners within that partnership. If there is someone who was acting as co-counsel in regards to the underlying case, then that attorney likewise may have to be sued. Our experienced legal malpractice attorney can help you explore your options in Tysons.
How Do You Prove the Relationship in a Legal Malpractice Case?
One of the fundamental things that you have to prove in a legal malpractice case is the attorney-client relationship. Usually that is proven through the Retainer Agreement that you signed with the attorney or with the firm. To prove that relationship, there doesn’t necessarily have to have been a payment of fees. The relationship may simply arise through consultation.
Ideally, there is a written contract between you and the attorney. That contract may be in the form of a written agreement or it may be in letter form. The contract is what controls. If you are not the one who is the party to the contract with the attorney, you may not have a basis for a claim against that lawyer.
Frequently the contract is implied from the acts of the parties. It may be sufficient for a relationship to be considered established if the client sought and received advice from the attorney. Even without a formal written contract, it’s possible that email exchanges could contain evidence of an agreement between the attorney and the client.
An oral contract, in this instance, is as enforceable as a written contract. For obvious reasons, it’s better to have a fully written contract because the terms are clearer to both parties. Call or contact us for a free phone consultation with a lawyer on your legal malpractice matter in Tysons.
In a legal malpractice action it is necessary in most instances to retain an attorney as an expert witness. That attorney acting as an expert will testify as to the standard of care, the breach of the standard of care and what damages that breach caused.
What is Substandard Behavior in a Legal Malpractice Matter?
Proving substandard behavior is a function of being able to prove first what the standard of care was. Normally that is going to be proved through another attorney. That other attorney will have to testify. That other attorney will set forth what the standard of care is that the defendant attorney should have complied with. That attorney who testifies will also testify as to how the defendant attorney somehow breached or violated the standard.
The standards typically are not in writing. There is no book that defines what the standards are. It’s simply a matter of proving what the standard is through another attorney who is knowledgeable in that field of law.
Our legal malpractice attorney understands that professional people in Tysons are not expected to be perfect, but they are expected however to be reasonable. They are expected to be able to operate within the broad swath of what might be called “reasonable conduct”. It is ultimately up to a jury to decide what is reasonable and whether or not the attorney fell below that standard of reasonable care.
What Damages are Recoverable in a Legal Malpractice Matter?
Generally the damages recoverable are what are called “financial damages”. If the underlying case in Tysons relates to litigation and you say that you lost the lawsuit because of the lawyer’s conduct, then a legal malpractice lawyer could help you recover all of the damages that you could have recovered in that underlying litigation. If the underlying matter is a non-litigation matter, the damages may be different. For instance if you hired an attorney to draft a contract that covered certain things and the attorney drafted the contract but didn’t include those things, that could be the basis for a legal malpractice action. The damages in that instance would be what you lost by those contract items not being included. Of course you would have to be able to explain why you didn’t pick up the absence of those items in the contract.
Although the attorney’s behavior may have caused you a great deal of distress, typically those noneconomic-type damages are not recoverable in a legal malpractice matter.
What is the Statute of Limitations for a Legal Malpractice Matter?
In general it is either three or five years. If you had a written contract with the attorney, then it typically is going to be five years. If you did not have a written contract with the attorney or the attorney’s firm, then as to that person or entity, your statute of limitations may be three years in Virginia.
Tricky questions can arise as to when the statute of limitations begins to run. In some instances it begins to run when the breach occurred. The breach being the substandard behavior by the attorney that caused you some damage. In other instances it may not begin to run until the representation by the attorney ends. Those are complicated questions that need to be addressed by your legal malpractice lawyer in Tysons.
What Does the Term “Case within a Case” Mean?
Within the legal malpractice context of litigation, there typically is a case within the case. The underlying case is the litigation matter that was improperly handled by the attorney. If the attorney allowed the statute of limitations to run on a claim, that conduct may be referred to as a “per se violation”. That is, it’s a breach of the standard of care on its face. You probably do not need an expert witness to prove that. What you do have to prove however is what was the value of the underlying case i.e., the “case within the case”.
In non-litigation matters there typically is not a case within a case. There is simply the basic substandard behavior by the attorney that has to be proven and what damage it caused. To learn more about nuances like these in legal malpractice cases in Tysons, reach out to our attorney.
Choose Brien Roche as Your Tysons Legal Malpractice Attorney
Tysons legal malpractice lawyer Brien Roche has over 40 years of trial experience. He has authored three well-recognized textbooks, two of which deal exclusively with Virginia law. Virginia Torts Case Finder is published by Lexis Nexis Publishing. Objections: is published by Virginia CLE Publications which sponsors Virginia continuing legal education programs. The third textbook is entitled, Law 101 published by Sphinx Publishing. This latter book has sold approximately 30,000 copies and is still actively selling. Schedule a consultation today.
Frequently Asked Questions
How to define substandard behavior for an attorney?
The basic obligation of the attorney is to comply with what is called “the standard of care.” The standard of care is a standard governed by what is the norm within the profession as far as that particular type of matter. The attorney who is being sued is not held to the highest standard of care. Nor is he allowed to operate at the lowest standard of care. What is expected is what a reasonably prudent lawyer would do in that context.
Is expert testimony required in a legal malpractice case?
The expensive part of legal malpractice claims is that not only does the Plaintiff need a lawyer to handle the case, but also a legal expert to testify. The expert addresses what the standard of care was and how that standard of care was breached. The expert may also give an opinion as to what the fault of the lawyer caused. Going to trial without an expert witness to support a legal malpractice claim in most instances would be unwise.
How long do I have to file a malpractice claim?
Virginia’s statute of limitations for legal and accounting malpractice cases may be either three (3) or five (5) years. Exactly what the limitation is is a tricky issue for which legal consultation is required.
Where can I find the basic standards for care for accountants?
When an accountant fails to provide basic standards of care, it can lead to severe losses for their clients. The basic standards of care for the accounting industry are found in:
- The Financial Accounting Standards Board’s Generally Accepted Accounting Principles.
- The American Institute of Certified Public Accountants’ Generally Accepted Auditing Standards
- The Sarbanes-Oxley Act
