Will My Louisiana Legal Malpractice Case Go To Trial?
Every four years, the American Bar Association’s Standing Committee on Lawyers’ Professional Liability produces a report on trends in legal malpractice claims, based on data from malpractice insurance companies. The most recent trends include:
- A rising number of legal malpractice claims related to family law, probate law, collection, and bankruptcy law, and business transactions or commercial law. However, most malpractice claims were filed against personal injury attorneys who represent plaintiffs. Real estate law was the leading claims category for the previous four years but ranked second in the most recent report, which reflects a more stable market. The prevalence of estate, trust, and probate malpractice claims will likely continue to grow as the baby boomer generation passes away and passes on its wealth.
- Legal malpractice claims are becoming more successful. Claims that ended up getting no payout decreased drastically. In addition, legal malpractice insurer payouts were up across all monetary amount categories. Payments between $50,000 and $200,000 nearly doubled, payments between $500,000 and $1 million rose by nearly five times, and payments between $1 million and $2 million increased from 49 to 444. Payments of more than $2 million more than tripled.
- There are beginning to be more legal malpractice claims against large corporate law firms. These firms, compared to smaller firms and solo practitioners, saw the largest increase in claims.
One truth that has not changed is the fact that very often, claims against insured attorneys will settle, rather than proceeding to trial.
What Are The Steps In A Legal Malpractice Lawsuit In Louisiana?
While legal malpractice cases can be a complex undertaking, in some cases, filing a malpractice lawsuit against an attorney who was negligent in handling your case might be your only recourse. The legal malpractice may be obvious, such as in the case of a missed deadline or exceeded statute of limitations. In other cases, the issue may be considered more of a grey area when it comes to whether or not legal malpractice actually occurred and if it did, whether it had any significant effect on the outcome of your case. If you really believe that your attorney has harmed you financially through negligence, you need a Baton Rouge legal malpractice attorney on your side who has experience litigating legal malpractice cases from beginning to end.
Proving a legal malpractice case is proving two cases in one. First, you have to prove that your attorney owed you a duty of care. Then, you have to prove that your attorney acted negligently in handling your case, breaching that duty and that if that negligence had not occurred, you would have received a favorable outcome. A substantial level of re-litigation of the original case can often become necessary in order to reach a successful outcome in a legal malpractice case. Even if the attorney in your original case made an obvious error, a jury might decide that you would have lost the case anyway.
How Do I Know If I Have A Legal Malpractice Case?
Many clients do not even realize it when they have been victims of legal malpractice. They might realize that their lawyer did something wrong which negatively affected their case, but it can be difficult to tell whether you should report your attorney’s actions. Losing your case alone is not enough to prove that your attorney acted wrongfully. People lose cases all the time. To establish a cause of action for legal malpractice, you must prove that all of the elements of legal malpractice occurred. About one-third of people who file a legal malpractice claim against an insured attorney will eventually recover monetarily. About 15% of people who file claims will recover more than $100,000 in damages.
According to studies by the American Bar Association, failure to know and correctly apply the law is the most common error, resulting in over 11% of legal malpractice claims. This means the attorney in question was unaware of the legal principles involved in the case or did legal research but failed to understand and utilize the principles. The second most common legal malpractice claim is a planning error, making up nine percent of cases. This means that the attorney has adequate knowledge of the case facts and the law, but makes a severe error in judgment when creating a strategy as to how the case should be handled.
What Happens In A Louisiana Legal Malpractice Case If It Goes To Trial?
Similar to other types of malpractice cases, the majority of Louisiana legal malpractice claims settle outside of court. Since it is more cost and time-efficient to settle a case outside of court, attorneys and clients usually prefer this recourse over a trial with a judge and jury. However, some legal malpractice cases do end up in court for a trial. Most cases that go to trial have exhausted all other options and methods for resolution before deciding to move on to a trial. When two parties cannot come to terms, or when one party is adamant that they are not getting the justice they deserve, going to court for a trial may be the last and only option.
Legal malpractice cases are widely known for being challenging and complicated. In a court setting, when a Louisiana legal malpractice case goes to trial, two cases are basically being presented to the court. For instance, one part of the trial is proving that the former attorney, who takes on the role of the defendant in the legal malpractice case, breached his or her client’s standard or duty of care. The second part of the malpractice claim is establishing that the former attorney’s negligence or improper action was the proximate cause of the plaintiff’s damages or the actual reason the plaintiff was not able to recover damages. Proving negligence, causation, and damages in two parts in a legal malpractice case is the court standard known as the case-within-the-case.
As mentioned, in a Louisiana legal malpractice case, the plaintiff’s former attorney becomes the defendant and takes the place of the original defendant of the initial case. Once the trial is underway, it is essential to present key evidence and expert witnesses to support and prove malpractice. Throughout the trial, the judge and jury will hear and see the facts, evidence, and arguments from both sides. Most courts in the country employ the standard of the case-within-the case in legal malpractice trials to prove causation and damages. In the case-within-the-case, the plaintiff has to prove that negligence occurred on behalf of their former attorney and demonstrate that they would have successfully collected damages from the case where the negligent representation was committed. It is important to note, however, that Louisiana modified the standard that most courts use to prove causation and damages in a trial.
Who Carries The Burden Of Proof In A Louisiana Legal Malpractice Case?
The vast majority of the courts across the United States apply the case-within-the-case standard to prove causation and damages in a legal malpractice case. Even though it is seen as an effective way to resolve a legal malpractice case, many criticize that the burden of proof falls too heavily on the plaintiff. As a result, the state of Louisiana modified the standard to shift the burden of proof to the defendant. The modified rule indicates that as long as the plaintiff can establish that the former attorney was hired to do a certain job, there was a client-lawyer relationship, and that the lawyer’s actions were negligent or breached the duty of care, the burden of proof would fall on the defendant and not the plaintiff. In other words, the defendant or former attorney would have to prove that they would have never been successful at winning their underlying case. Therefore, if the plaintiff can establish a prima facie case, the defendant will carry the burden of proof in a Louisiana legal malpractice case.
What Is Prima Facie In A Louisiana Legal Malpractice Case?
If a plaintiff is able to show that the defendant or former attorney failed to do the job that he or she was hired to do, and was negligent or breached their duty of care, the plaintiff can establish that the negligence resulted in a loss. Thus, the client can establish prima facie. Prima facie means that the plaintiff has sufficient evidence or claim to proceed in a trial. As a result, the burden would shift to the defense to prove that the initial case would have never prevailed.
As an example of prima facie in a Louisiana legal malpractice claim, consider a case in which the attorney failed to file a personal injury complaint before the statute of limitations expired. The individual who hired the attorney to help pursue the party at fault may have a legal malpractice case if they can demonstrate that the lawyer acted negligently. Consequently, the defendant or former attorney in the underlying case must overcome the claim of legal malpractice by trying to prove that the plaintiff would not have won their personal injury case and collected damages. In many other courts, an attorney’s failure to file a complaint before the deadline in and of itself will not grant a plaintiff prima facie. Fortunately, Louisiana’s modified standard allows the plaintiff to have a better chance of winning their legal malpractice case.
For more information on Litigation Of A Legal Malpractice Claim, a consultation is your next best step. Get the information and legal answers you are seeking by calling (225) 230-9300 today.
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