What is Legal Malpractice in Texas
At its core, the definition of a legal malpractice action is quite simple: A cause of action for legal malpractice exists in Texas when an attorney fails to exercise that degree of care, skill, and diligence which is commonly possessed and exercised by an attorney in this state, resulting in damages to the client.
What are the Elements of Legal Malpractice? To prove a legal malpractice action, you must establish three elements: 1) There was a lawyer-client relationship; 2) The lawyer owed a duty to the client by virtue of that relationship; and 3) Your lawyer fell to live up to that duty which in turn caused you and your family harm. In other words, a legal malpractice (or professional negligence) action is a failure to do something that lawyers are expected to be able to do at the level of the reasonable lawyer in the same town. If you can meet this burden , then you are entitled to relief in the way of money to compensate you for your loss.
What are Examples of Legal Malpractice? When the law firm has a good case or strong leverage on the issue and loses it because of failure to do something required by the law; – When the law firm fails to properly supervise support staff or junior attorneys; – Missing a statute of limitations – Failing to timely answer a lawsuit – Failing to file an appropriate motion with the trial court – Failing to object to improper evidence – Failing to disclose conflicts of interest – Failing to identify relevant and non-obtained evidence – Ignoring settlement opportunities and/or opportunities to reduce client financial obligations – Failing to require the opposing party to file a cost bond prior to pre-trial activity. Not all of these examples result in damages: certainly not every missed deadline means a loss. However, the potential exists.
How to Tell if You Have a Legal Malpractice Claim
In order to discover whether you have a legal malpractice case, you should very carefully consider the following questions. First, there must be a specific fact pattern along with resulting damages in order to have a viable case. You should review the following step by step guide:
- Did the attorney miss a deadline or file a document incorrectly? Was the deadline to file a particular lawsuit missed? Was a motion for summary judgment or motion to dismiss filed at the wrong time or incorrectly?
- Will the attorney be able to explain or justify their failure to meet a deadline?
- Is the statute of limitations on the underlying case a year or more?
- Do you have a copy of the firm’s files on your case or case name and number for a review?
- Write down the facts of the underlying case in a timeline format with dates and times.
- Review the underlying case and determine how you were damaged and whether you would have had a different outcome if your case was handled correctly.
- If you find you have possibly been a victim of legal malpractice, consult with a legal malpractice attorney to determine if you have a case.
Expert Witnesses in Texas Legal Malpractice Claims
In the landscape of Texas legal malpractice litigation, one critical element has the power to make or break a case: the expert witness. This may come as a surprise to many, as the expert’s role is often sidelined in the world of other malpractice claims. Legal malpractice in Texas, however, is unique in that it requires the testimony of an expert just to get the case off of the ground. The expert’s role cannot be understated; the expert witness is responsible for answering the question of whether your attorney’s actions fell below the standard of care. The expert’s opinion is more or less the "crux" of the case; without the expert, there is no case.
It is easy to see why the expert would be so powerful at the onset of the case. In Texas, there is an absolute right to challenge the opposing party’s expert witness. That is, the opposing side gets their opportunity to depose your expert. If that party is not satisfied with the expound on issues that are no more or less than his/her expert opinion, they can take it a step further by filing a motion to strike the expert from the case due to some alleged factor that would render the expert’s testimony unreliable. If that motion is granted, your case is over before it really even started – without an expert to testify in support of the merits of the case, the case will likely be dismissed.
In addition to having the right to question the qualifications and opinions of your expert witness, the opposing party also has the right to investigate the circumstances giving rise to your expert’s opinions. That is, the opposing party is entitled to substantially delve into the background of your expert in order to determine the source of their opinions. Do they have the proper qualifications and education to support their claim? Do they have any connections to you, or to your experience during the subject litigation? Are they really an expert?
Although the subject of expert witnesses can only be touched on slightly here, it is worth noting that Texas courts do not have a strict requirement that your expert be board certified or a member of some elite group. The Texas standard for determining the best testimony on this issue is known as Moore v. Willmann which, although a lengthy opinion, can be shortened, explained and broken down in another article. Texas courts have also made it clear that the issues that will be explored on the question of your expert’s opinion do not necessarily have to be an "exact or precise" match to the original case.
How to File a Legal Malpractice Case
Once you have consulted with and ultimately selected a legal malpractice attorney, the process is well underway. In addition to the normal requirements of filing a civil suit, a legal malpractice case has some unique procedural hurdles. First, a legal malpractice plaintiff must often consult an expert and obtain a report, or at least a letter opining a different result could have been obtained. Otherwise the defendant may seek to file a motion to dismiss and insist upon such a report before the case goes forward. Further, many legal malpractice cases are first subject to mandatory mediation. Where possible, mediation should be used, although it is never a guarantee of resolution. Mediators are always looking for a basis upon which the case may be settled, and many are adept at bringing the parties’ positions closer together. Sometimes mediators find their effort and patience rewarded with settlement; sometimes they suffer disappointment. But the mediator’s focus is not on representing "justice , " but upon his or her idea of what they believe the parties want, which may or may not be correct or possible. Mediation done under the direction of a skilled mediator can often greatly reduce an expensive and time consuming atmosphere. Both plaintiff and defendant have the opportunity to vent their opinions to someone who will listen, and to be persuaded that settlement is in their best interest. At a very minimum, it can avoid the expense of discovery and lengthy trial. If settlement is not reached, then proceedings are conducted regarding discovery, depositions, and documentation. These steps usually culminate in an enormous pile of paper, and testimony in the hundreds of pages. Then there is trial, followed by appeals. Good legal malpractice representation is essential in Texas because the rules of procedure and evidence are exceedingly complicated, and the law rarely favors the legal malpractice plaintiff.
Possible Outcomes and Remedies in Texas
Clients who allege legal malpractice may seek both economic and non-economic damages. Economic damages recovery would include lost settlements and verdicts as well as expenses paid. Non-economic damages would encompass emotional damages, such as mental anguish, pain, and so on. In Texas, the law does allow a plaintiff to recover both direct and consequential damages. On the direct side, general primary damages are recoverable. Consequential damages are much more difficult to obtain and must be specifically argued based on the fact that the damages not only flow from the attorney’s actions to the client, but that the damages go outside the attorney-client relationship to a third party. In some cases, the courts will assess punitive damages against a defendant attorney, but keep in mind, punitive damages generally require proof of malice, fraud, or gross negligence. Texas does not employ a separate standard of proximate cause and attorneys are shielded from liability for "good faith" conduct and collaboration with a defendant. There are considerable litigation risks for attorney defendants when it comes to defending legal malpractice actions. If the defense wins a summary judgment of case dismissal based on the legal malpractice claims, they can request attorney’s fees to be awarded against the original suing client.
Retaining the Right Legal Malpractice Lawyer in Texas
When faced with the need for legal representation in a legal malpractice claim, it’s essential to choose the right legal malpractice attorney to ensure the best possible outcome. There are several factors to keep in mind when selecting your legal representation. First, consider credentials. A legal malpractice attorney in Texas should have a degree from an accredited law school and be licensed to practice in the state of Texas. Board specialization in legal malpractice law is also a positive credential to seek. Next, ask about experience. A legal malpractice attorney should have significant experience in handling cases similar to yours and a proven track record of success . An attorney with a strong background in trial work, as well as negotiation and settlement, will be better equipped to represent you in your case. Finally, ask questions during your consultation. A qualified legal malpractice attorney in Texas should be able to answer all of your questions and provide you with a clear understanding of the strengths and weaknesses of your case. Be sure to ask about their fees and costs as well. By keeping these factors in mind, you can choose the right legal malpractice attorney in Texas to help you achieve the best possible outcome in your case.