Texas Legal Malpractice
Legal Malpractice Defined in Texas
A legal malpractice claim is defined as "an act or an admission by a lawyer [that] set[ts] in motion a series of events that had the consequence of bringing about harm to the plaintiff." In other words, a legal duty was owed by the lawyer to the client; a breach of that duty caused a financial loss; and such damage directly resulted from the lawyer’s negligence.
Common Instances of Legal Malpractice
a. Personal injury cases
b. Civil litigation
c. Estate Planning
d. Real Estate Transactions
e. Medical Malpractice
f. Criminal Defense Cases
g. Contract Cases
h. Workers Compensation
Sources
"The Legal Malpractice Action , " Texas Family Law, May 2010, Vol. XXXIII, No. 5.
Sharae S. Collins, "Malpractice in Texas – What You Need to Know", Professional Liability Insurance Society, October 3, 2014.
Roger F. Lathrope, "The Rise of Legal Malpractice —An Overview of the Evolution, Status, and Prevention of the Most Common Legal Malpractice Claims", Dallas Bar Association, 2006.
When You Need a Legal Malpractice Specialist
It is important that your legal malpractice attorney understands the potential pitfalls and hazards involved in the particular area of the law your case is involved with. There are many layers of complexity that make these cases challenging, and an attorney who specializes in it will have experience to offer the best chance of getting the best resolution and settlement possible. Otherwise, you could end up with a bad result, a considerable amount of time lost, and a lot of frustration and confusion at the end of it all.
For example, if your legal malpractice case involved a real estate transaction, you want a lawyer who can prove they have handled cases like that in the past and were successful at it. If it involved a workers compensation claim, you want someone familiar with that area of the law as well. The more you can match up your case with someone who has handled similar matters, the better.
There are other considerations that vary depending on the area of the law. For example, in a bankruptcy case, the timing and the jurisdiction are very important. Someone that handles a lot of bankruptcy cases will understand that and represent you accordingly. The same could be said for medical malpractice claims or personal injury claims. In those cases, it is also vital that you get an attorney that knows the local courts and judges to help you get the fairest result for you.
Why is hiring an attorney with experience in handling legal malpractice cases so important? Because these are almost always a very complex process and there are several ways in which things can go very wrong if you do not have a knowledgeable attorney advocating for you. This is a very specific area of the law in which a general understanding and experience will not be enough. Make sure you select an attorney who can advise you about the best course of action in these situations.
Traits of an Effective Legal Malpractice Attorney
You want to be represented by a firm that is knowledgeable, experienced and understands the nuances of your situation. When it comes to hiring a legal malpractice lawyer, there are several qualities you want to be sure that the attorney possesses. These include:
Experience: You’ll want your attorney to have a general background in your area of law, but they’ll also need to be familiar with legal malpractice cases as well. Your attorney should have a good understanding of the statutory rules involved in taking action against your previous attorney. Make sure the attorney you’re considering is experienced in handling legal malpractice cases.
Success Rate: It’s important to find out how many legal malpractice cases your potential attorney is involved in. Ask what percentage of these cases has been dismissed, whether the cases went to trial and the outcome (such as settlement or winning the case).
Client Review: Reading reviews from previous clients is another means of gauging how effective an attorney is. You can do this for your potential legal malpractice attorney by looking them up on www.avvo.com. This is a legal rating site that some professionals use to gauge their effectiveness in their field. Avvo ranks Texas attorneys by the detail of their information such as years in practice, area of law practiced, publications they’ve authored, speaking engagements and other factors.
What To Do When You Suspect Legal Malpractice
If you suspect that your attorney has committed malpractice, the first step is to gather evidence and assess potential damages. Since a legal malpractice case is essentially a case within a case, you should have the issues evaluated by an attorney with experience in these types of matters. Since the statute of limitations in Texas is generally 2 years from the act or omission you believe was negligent, moving quickly is in your best interest.
Litigating a legal malpractice case in Texas can be very complicated and expensive. A fee in which it would potentially take hundreds of thousands of dollars to litigate, but in which you would lose if you did not successfully prove liability and damages. Texas courts have addressed this very problem by instituting what has been referred to as the "open courts" provision. This provision holds that a party is entitled to present their case to a jury despite not being able to prove every last medical bill or loss. While this "open courts" provision may exist, the malpractice case is still expensive to litigate and you will need to retain legal malpractice counsel on an hourly basis. As such, make sure to ask about the retainer and the hourly rate so you are comfortable with the arrangement.
How Texas Legal Malpractice Cases are Managed
If you suspect that your attorney was negligent, the first step to take is to search for a valid cause of action. In many cases a legal malpractice attorney will have to be consulted to determine if there was an error and which error caused you the most damage. Once this is determined, a suit can be filed either in State court or County court. It will first file a pleading that acknowledges a cause of action under the Texas Rules of Civil Procedure. The petition is filed with the clerk of the court. Once it is recognized as a cause of action , a citation is issued to the defendant. This informs them that they will have to appear in court to defend the case or risk a judgment against them. A defendant then responds to the citation and the petition is therefore answered. If either side does not reply, the suit is not considered active and a judgment cannot be made. It is important to note that no purely legal malpractice claim in Texas is entitled to a jury trial as we discussed in our piece on Legal Malpractice in Texas.
How to Find a Local Legal Malpractice Attorney
Additionally, it’s important to plan on meeting with the lawyer at his or her office and to determine that there’s a history, and that the lawyer is nearby. This makes it much easier if you have to attend appointments and to receive notices for hearings and case updates, as many notices are sent via regular mail. It may also make it easier to contact an attorney, as visits to an office are generally more expedient. Meeting with the lawyer in his or her office also gives you a chance to see how an attorney conducts themselves in the workplace; you can even ask to speak to his or her staff, as these personnel are often the main points of contact for clients.
Legal malpractice is serious: it can cost clients their wealth, freedom, relationships and more. Because of the serious nature of the offense, it’s crucial to choose the best lawyer for your situation. Finally, don’t forget to trust your intuition – if a lawyer’s office makes you uncomfortable (or they won’t let you into their office to meet), it’s probably not the best choice.
What You Need to Know About the Costs of Legal Malpractice
An important aspect of any legal matter is the cost involved. Pursing a legal malpractice case is no different. If you have a fee basis agreement with the attorney or law firm, it may not be necessary to pay anything out of pocket beyond your normal fees. If you have already paid all fees and costs to the attorneys, then no additional fees should be charged for the legal malpractice case. There are attorneys willing to take a case on a contingency fee basis without ever charging any additional fees or costs. However, if your case settles, you have to be aware of the split of proceeds. If the attorney receives 40% of the recovery, that means that you are left with only 60%. So while you have not paid anything to the attorney , it resulted in less money in your pocket overall. The same is true if you decide to pay a partial retainer as well as an hourly rate. The percentage cut the attorney takes will come off the top of the recovery, making the overall settlement much less than it could have been. It is very important to watch carefully the reinvestigation fees demanded by the attorney or law firm since these costs can quickly add up and be deducted from your ultimate recovery. It is often difficult to determine how much of the reinvestigation costs were necessary to recover the settlement amount, and if there is any over-billing, it is even harder to determine which costs were excessive. So despite the fact that you may be spared any additional fees or costs, it essentially makes the entire experience more painful as you are still left paying the attorney more yet again.