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Posts tagged "Legal Malpractice"

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.

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.

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.

The Attorney-Client Privilege: It's Place in Legal Malpractice.

Often times, the attorney-client relationship is noteworthy for the confidentiality which is imbued within communications between the parties. Thus, when a plaintiff files a legal malpractice action, certain privileges relating to representation are automatically waived. What those privileges are is not always the same. This issue is seen in an order fromO'Kinsky v. Perrone, CA: No. 10-6075, Memorandum Order (October 11 2012, E.D.P.A.).The case was a malpractice action filed against a defendant law firm, but did not include the lawyer who actually represented the plaintiff. During the ensuing deposition, defendants' attorneys asked questions of the plaintiff which were objected to on the basis of attorney-client privilege.

Custody and Legal-Malpractice; Unfamiliar Foes.

Abeln v. Eidelman, 2012 WL 1379516 (Pa. Com. Pl. 2012) is a legal malpractice case out of Lehigh county,Pennsylvania. The case is different than those normally spoken about because it primarily involved representation related to a custody dispute. The child's ... 

Say What You Mean, and Mean What You Say

As this blog has often mentioned, the attorney-client relationship is one of, if not the most important factor in moving forward with legal malpractice actions. Capitol Surgical Supplies, Inc. v. Casale, 86 Fed. Appx. 506 (3rd Cir. 2004) builds on this theme by clarifying when an attorney who does not form an explicit attorney-client relationship may still be held responsible for malpractice. The most important piece of the decision is that when working with an attorney; make sure to discuss the scope of the relationship. If an attorney does not sign an explicit agreement, or take actions which would place you in a clear attorney-client relationship, then if something goes awry, the client will have no repercussions.

One of Pennsylvania's Smallest Classes

Imagine your parent passes away, and you are an inheritor under the will. There is one problem, the attorney who drafted your parent's will did something wrong. Can you recover for their malpractice in Pennsylvania? This is the situation encountered in Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). There are two major points the case provides. The first point is more of a procedural matter stating that when you appeal a judgment, the statement for matters complained of on appeal must be reasonably specific or the matters will be considered waived, and appeal denied. The attorney malpractice point which is important is that there are certain situations where a third party who does not have an attorney-client relationship may recover in a will situation.

Methods of Proving Malpractice

In legal malpractice cases, plaintiffs often use the "case-within-a-case" method to prove their claims. This theory requires a plaintiff to show they would have been successful in the underlying action if not for the attorney's negligence. For many years in New Jersey, courts viewed it as the sole method for proving legal malpractice. In Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (N.J. 2004), the court recognized that "case-within-a-case" is not the exclusive avenue for proving legal malpractice cases. It is one of several methods.

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