If you feel like your attorney has engaged in malpractice, what can you do? First, you should have a basic idea of what actually constitutes legal malpractice. In Louisiana, the plaintiff has to prove (with evidence that is strong enough to convince a reasonable trier of fact) three things. 1) That an attorney-client relationship exists. 2) That there was negligent representation by the attorney. 3) That there was actual loss caused by that negligence. What constitutes negligence? The plaintiff would have to prove that the attorney did not use the same degree of care, skill, and diligence which other prudent practicing attorneys exercise in the same locality.
In order to prove that the attorney did not exercise an adequate level of care and diligence, normally the plaintiff will hire an expert witness in order to establish what the standard of care in that locality is. The plaintiff also has to establish that the attorney’s actions did not live up to this standard of care. If the attorney was particularly negligent or the malpractice was obvious, then it might not be necessary to call in an expert witness to establish malpractice. If the malpractice or negligence was not gross, however, then bringing in an expert witness is almost essential.
A recent case in Louisiana is a great example of a legal malpractice claim. In early 2000, a woman filed suit for injuries she sustained in an automobile accident with another man. The attorney she retained never filed an opposition to the Motion to Limit the Ad Damnum (a motion that would limit her amount of recovery), which was filed by the other party. Because the attorney did not oppose the motion, the motion was granted and the woman’s claim was limited to recovery in the amount of $30,000.00. According to the woman, her attorney also went ahead and settled the case without her authority while she was still being treated for her injuries. He settled the case for only $22,000.00. The woman then went ahead and settled her case and dismissed her attorney, filing a petition claiming legal malpractice.
The trial court ended up ruling against the woman, stating that the woman’s settlement did not contain a reservation of rights. Basically, the trial court held that her settlement of the case for which she had originally retained her former attorney precluded her from bringing a legal malpractice claim against her former attorney. The woman appealed, and she argues that the trial court erred because material issues of fact remain.
One of the main questions to answer is whether or not settling the underlying case precluded the woman from bringing her legal malpractice claim. By looking at the relevant case law, the appellate court determined that settling an underlying case does not preclude the right to file a legal malpractice suit. However, this right might be waived if it is determined that a reasonably prudent party would not have settled the underlying case.
In determining whether or not a reasonably prudent party would have settled the underlying case, one must look at the facts that were known to the party at the time and not look at facts only known in hindsight. In reviewing this case, the appellate court found that the woman’s actions were not clearly outside the bounds of what a prudent person would do. Because of this, a material question of fact exists with regard to whether or not she acted as a reasonably prudent person. So the motion for summary judgment was granted incorrectly, and her negligence claim remained.
If you believe that you have been misrepresented or want to ensure that you get the best representation possible for your personal injury case (so that you do not have to go through a messy malpractice claim), contact Berniard Law Firm at (504) 527-6225. A competent attorney that specializes in personal injury will be happy to help you with your case.