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Legal Malpractice FAQ

Legal Malpractice Lawyer in New Jersey

The following are just a few questions that people often have about legal malpractice. If you have other questions, contact me.

Can I Get My File?

Whether you have a legal malpractice case often turns on the lawyer's file, all the drafts and letters and memos that are in there. The file is a reflection of what the lawyer did or did not do, the good and the bad. When lawyer/client relations deteriorate -- a legal malpractice suit is in the air -- a lawyer may decide to withhold the file from the client.

You should know that you have an absolute right to see your file and to get a copy of it. The ethics rules that govern lawyers make this clear. The file is, in reality, your file, too, and no lawyer may deny you access to your file. This is so even if your bill is not paid current.

But having the right to your file is not the same as actually having your file. Quite often the first tussle in a legal malpractice case is over getting a copy of the file. A straight-forward written request should suffice. Write them that Ethics Opinion 554 requires them to give you a copy of your file. If that does not bring results, then contact me and if I think I can help you, I will get the file.

The file is evidence, often the best evidence, of what went wrong. Conversely, the file may show that despite appearances, all was properly handled. Either way, almost all legal malpractice cases begin with a thoughtful and professional review of the file.

How Do Legal Malpractice Cases Work?

A legal malpractice case is really two cases and, to win, good proof is required for both of them.

1. Prove the botched case was a winner.

First, we must show how things would have come out if the lawyer had done a good job. If it involves a case that was lost, the "underlying case" must be re-prepared and re-proven (or put together for the first time if the attorney failed to do that). That is, the plaintiff must show that the case would have been won if it had not been mishandled by the lawyer.

So, if the case that was botched was a medical malpractice case, proof would be required that the doctor was negligent and caused damages. Medical experts would be needed in the legal malpractice case to prove this, just as they were required in the medical malpractice case. If the malpractice was in how an agreement was written or a closing done, a plaintiff still has to prove how things would have come out if the contract or closing was done correctly.

2. Show the attorney breached the standard of care.

Second, the plaintiff must prove that the attorney's work breached the standard of care. A mistake or ethics violation may not be enough. Legal experts would have to be hired to give opinions as to how the lawyer breached the "standard of care" and how it made things go badly. These experts are often hard to come by since most lawyers do not want to testify against other lawyers.

Legal malpractice cases can be defended both ways -- that is -- that the lawyer did not breach the standard of care but, even if he did, the "underlying case" was a loser. We have to beat both defenses, and this takes hard work and money.

3. Damages

The damages involved in these cases must be serious, economic losses that stem from the attorney’s negligence. Small cases arising from really dumb mistakes are still small cases.

What About Things I Told My Attorney in Confidence?

These cases can get very nasty. When a client sues his former lawyer, the attorney-client privilege disappears and the lawyer in defending himself is free to tell of the privileged things that the client told him in great confidence. It is ironic that a lawyer is duty-bound to keep clients’ secrets unless he commits legal malpractice -- then a lawyer can tell everything. But that is the rule.

The bottom line is a legal malpractice case should not be started unless the client understands all of this and is willing to see the case through to the end. You need to be as committed and as well-prepared as your former attorney will be.