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Legal MalpracticeWhen Your Lawyer Needs a LawyerYour attorney’s job is to fight for your rights, for justice and relief from injustice. But when your attorney acts in a way that puts your case in jeopardy, possibly even losing the case for you due to his misconduct, then you might have a legal claim of malpractice. In order to prove legal malpractice, you must first prove that you did in fact have a client/attorney relationship. A payment receipt or a copy of your contract will suffice for this. Then, you must prove that the case for which he represented you, actually had merit. If your prior case lacked merit to begin with, then your attorney didn’t actually lose anything for you. To illustrate this, consider the case of Sukoff v. Lemkin fought in 1988. The previous attorney failed to investigate the assets of his client's husband in a case for divorce. Later when the plaintiff filed a legal malpractice case against her attorney, she lost because she didn’t prove that her attorney's failure to investigate her husband’s assets would have led to a higher award. Proof in a Legal Malpractice CaseThis legal malpractice case failed because the plaintiff didn’t prove that the original case had merit. It was not enough to prove that her lawyer was negligent, or that damage was done. She actually had to prove her original case. This is called “the case within a case“. The strength of the original case will ultimately determine whether or not a lawyer will accept a legal malpractice case where the attorney failed to provide an adequate defense. Additionally, you must establish the fact that your attorney as a professional in a position of legal responsibility acted in a way that was less than the accepted standard of conduct for this profession. Less than good judgment is different from misconduct. If the previous attorney took your money and never went to court for your or even filed your case, that is an obvious case of misconduct. But at other times, it may be harder to prove misconduct. It may have possibly been the judge’s error rather than the attorney’s failures.
Collectability in Legal MalpracticeAnother factor for considering whether or not a legal malpractice case will be accepted by an attorney is “collectability”. If the original case was fought against a truck driver with no insurance and is now unemployed with no assets, it is not likely an attorney will accept this case. Since you can’t get blood out of a rock, the prior attorney’s failures or misconduct didn’t really matter. Your previous attorney didn’t cause any damage to you if nothing would have been gained anyway. If one of the actions of misconduct that the prior attorney was guilty of was failing to see if there were other possible remedies for your case, then filing a legal malpractice case with a new attorney that fails to examine other remedies will only result in another act of malpractice. Every attempt to seek a remedy must be made first before filing a malpractice claim. For example, maybe a claim of negligence may have been lost, but possibly a claim of fraud could be won. Or a product liability claim that is now passed the statue of limitations in one state maybe could be filed against the out of state manufacture in a federal court. If all the possible remedies haven’t been tried, then the previous attorney didn’t actually lose anything for you. No loss, no legal malpractice case. The following link offers additional information and insight into legal malpractice. Directory Of Lawyer Disciplinary Agencies National Practitioner Data Bank
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