Elements of Attorney Malpractice
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In order to prove attorney malpractice, it will be necessary that you show that your attorney didn’t use the ordinary skill and care that other attorneys would have when dealing with your case. The elements needed to prove attorney malpractice are as follows:
- Attorney’s Duty – First, you will have to prove that your attorney owed a duty to you. This will usually be easy to prove, because when an attorney takes on your case, he/she owes you a duty to handle the matter competently.
- A Breach of That Duty – The second element of an attorney malpractice case is to show that your attorney breached the duty owed to you. This breach can take many forms, including negligence, mistake, or not doing what was agreed to.
- The Breach Caused you Damages – Causation is the third element of an attorney malpractice case. It is necessary that you show that your attorney’s breach resulted in damages to you. Causation will likely be the most difficult element to prove.
- Damages you Suffered – The fourth and final element you must prove to win you attorney malpractice case is that you suffered some kind of damages. These damages must be in the form of financial loss. In most cases, the damages will be the amount you could have won if there was no attorney malpractice.
Proving Causation: What Does it Take?
Causation is hard to prove because first, you must prove malpractice on the part of your attorney. Next, your will have to prove that you would have won your underlying case if your attorney had not mishandled it. Finally, you must prove that if you won the case you would have collected damages. This could require you to prove that the individual you sued had insurance or assets to pay the damages.
I Think my Attorney Has Committed Malpractice, What Should I Do?
The first thing you should do is file a complaint with your attorney's State Bar Association. The Bar Association is an organization that licenses and regulates attorneys for each individual state. The Bar Association cannot, however, help you recover any damages you've suffered. To recover damages, you have to sue your attorney in court.
Do I Need a Lawyer to Help Me with My Attorney Malpractice Problem?
As you can see from above, proving an attorney malpractice case can be very difficult. It is hard to tell whether something constitutes attorney malpractice. A lawyer experienced in malpractice cases can help you determine whether or not you are the victim of attorney malpractice. An experienced attorney can also file an attorney malpractice lawsuit on your behalf and aid you in the court process.
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Last Modified: 12-07-2012 03:56 PM PST
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