Lawyers, like other professionals, are expected to exercise a certain degree of competency and skill. When a lawyer fails to exercise ordinary care, skill, and diligence and the failure results in damages to the client, the client may have a legal malpractice claim against the lawyer.
In Georgia, a Plaintiff must prove the following elements to succeed in a legal malpractice claim:
In most cases, the attorney/client relationship is easily proven through the existence of a written contract. However, a written contract is not essential to prove this relationship. An attorney/client relationship may be implied from the conduct of the parties. Georgia courts examine the nature of the contacts with the attorney, whether the client relied on any advice or assistance given by the attorney, and whether the attorney’s conduct caused the client to believe an attorney/client relationship existed.
Attorneys are required to use such skill, care, and diligence that attorneys of ordinary skill and capacity commonly possess and exercise in the tasks they undertake. Extraordinary diligence in not required. In the most basic sense, attorneys must exercise reasonable skill and diligence in whatever business they undertake on behalf of their clients. Bad results do not necessarily mean that an attorney has committed malpractice. However, an attorney who fails to apply well settled, clear, and widely recognized legal principles and procedures may be guilty of malpractice if the failure proximately causes damage to the client. This is normally proven through expert testimony setting forth the act of negligence and the manner in which the negligence caused damages.
Clients must prove that the attorney’s negligence caused the client to suffer damages. Put another way, the client must show that they would not have been harmed but for the negligence of the attorney. This requires the plaintiff to prove that his or her case would have had a favorable outcome but for the attorney’s negligence. If the client was a Plaintiff in a civil action, the client must also prove that any judgment would have been collectable.
The most common type of malpractice occurs when a lawyer misses a deadline that results in damages to the client. Examples such as failing to file a lawsuit within the statute of limitations, failing to timely answer a lawsuit, and failing to timely respond to dispositive motions can have devastating consequences for a client. Another common example of legal malpractice is when an attorney fails to advise his clients of all available benefits. For example, if an attorney fails to advise his client of uninsured motorist benefits in a personal injury case, he may be liable for malpractice. Chaney v. Blackstone, 249 Ga. App. 194 (2001).
Regardless of how your attorney messed up, you will need a competent attorney to handle your malpractice claim. Legal malpractice claims are very fact specific and difficult to win so do not delay in contacting an attorney if you believe you have been the victim of legal malpractice. Joel offers free case reviews in legal malpractice cases. Call him today.