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Legal Malpractice Archives

Defending Yourself in a Legal Malpractice Claim

If you are an attorney facing a possible malpractice claim it may come in several forms. A potential plaintiff, depending on the facts of the situation, may try several different legal claims to improve the chances of success so these types of cases are not normally cut and dry.

Failure to know or apply the law

Failure to know or apply the law is, according to the American Bar Association, the leading type of alleged error in legal malpractice claims. When you retain an attorney, you expect that attorney to have a knowledge of the law that goes well beyond what the average person would be expected to have. Because an attorney represents you, if he or she lacks relevant legal knowledge or fails to apply the law in a way that furthers your interests, then that attorney may have engaged in legal malpractice. Below is a brief look at what failure to know/apply the law consists of.

Top Three Legal Malpractice Claims in the U.S.

malpractice.jpgEverybody makes mistakes, but for certain professionals, those mistakes could lead to major repercussions for their clients. Lawyers are held to high standards for a good reason: the work they do has a major impact on their clients' lives. If a lawyer makes a serious mistake or does not fulfill his or her role properly, it is often the client who will suffer the consequences. Holding attorneys responsible for potential malpractice helps ensure that consumers are protected and that the legal profession as a whole continues to strive for the highest of standards. Here is a quick look at the three most common legal malpractice claims, according to the American Bar Association.

Attorneys Can still be Sued After Settlement is reached with a Third-Party

Gorjuice Wrap, Inc. v. Okin, Hollander & De Luca, LLP, N.J. Super. A.D., (2011) is leg al malpractice claim that challenges the Puder Doctrine. The Puder doctrine prevents a plaintiff from suing past council for damages because the plaintiff took a settlement that was less than the actual damages were worth. 

Not All Actions Against Attorneys require a Certificate of Merit

Sabella v. Estate of Milides, 992 A.2d 180 is a case about an attorney's misconduct, in which the trial court denied Appellant's motion to strike the judgment of non pros. A judgment of non pros enters judgment in favor of one party because the other has not done something, such as not appeared in Court. Here, Appellant did not file a certificate of merit, which is required in professional liability case. 

Have a Well-pleaded Complaint

In Pashak v. Barish, the husbad of the appellant, William Pashak, agreed to settle a negligence case for $100,000 in accordance with advice from his attorney, Marvin Barish, Esq. 450 a2d 67 (1982). The settlement stemmed from an employment action where Mr. Pashak was working on a ship and was injured. Mr. Pashak executed a release and subsequently received the settlement proceeds. 

The Meaning of Esoteric.

Vazquez v. Macri et al., No: A-3572-10T1 (N.J. Super. 2012) is a New Jersey state case which discusses when an expert is needed to define the professional standard of care. In the original trial, the case was dismissed in the defendant attorney's favor because no expert witness was produced. On appeal, the Plaintiff's main argument was that lay jurors could replace experts in this limited circumstance. The appeals court showed particularly why pre-litigation discovery, specifically depositions are so important in proper case preparation.

Precision wording....the key to law.

Sims v. Budd Lerner P.C., 2012 WL 4741587, (Super.Ct., App. Div. N.J. Oct. 5, 2012) is a case which examines the legal malpractice case within the scope of a post-divorce settlement agreement. The Plaintiff hired the defendant attorneys in relation to a post-judgment matter. 

Finding Your Way to a New Venue.

Lay et al. v. Bumpass, CA: 3:11-CV-1543 (M.D.P.A. 2012) is a case which examines the correct place to file a complaint for legal malpractice. This particular decision was based in part on the filing of the complaint in the Middle district of Pennsylvania based on diversity, meaning the plaintiffs were citizens making an allegation against a Defendant from a different state. The facts of the case are below.

The Meaning of Esoteric.

Vazquez v. Macri et al., No: A-3572-10T1 (N.J. Super. 2012) is a New Jersey state case which discusses when an expert is needed to define the professional standard of care. In the original trial, the case was dismissed in the defendant attorney's favor because no expert witness was produced. On appeal, the Plaintiff's main argument was that lay jurors could replace experts in this limited circumstance. The appeals court showed particularly why pre-litigation discovery, specifically depositions are so important in proper case preparation.

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