Brien Roche Law http://www.brienrochelaw.com Wed, 22 Jun 2016 18:00:44 +0000 en-US hourly 1 How do I Find a Medical Malpractice Lawyer? http://www.brienrochelaw.com/blog/how-do-i-find-a-medical-malpractice-lawyer/ http://www.brienrochelaw.com/blog/how-do-i-find-a-medical-malpractice-lawyer/#comments Wed, 22 Jun 2016 18:00:44 +0000 http://www.brienrochelaw.com/?p=9526 How do I Find a Medical Malpractice Lawyer? from Brien Roche Law

How do I find a medical malpractice lawyer is a difficult question to answer. Probably the best place to start is with friends and family who may have previously retained a medical malpractice lawyer in the locale where you are. If … Continue reading

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How do I Find a Medical Malpractice Lawyer? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses How do I find a medical malpractice lawyer

Brien Roche

How do I find a medical malpractice lawyer is a difficult question to answer. Probably the best place to start is with friends and family who may have previously retained a medical malpractice lawyer in the locale where you are. If those friends or family were satisfied with the services of that lawyer, it probably makes sense to contact that attorney and see if that attorney is willing to take on your matter and whether or not you’re interested in having that attorney take on your matter.

Finding A Medical Malpractice Lawyer In Lawyers.com

Another worthy source for investigation in terms of finding lawyer is a site that is maintained by a company by the name of Martindale Hubbell.  Martindale Hubbell is the premiere lawyer rating service in the country.  The site that they maintain is known as www.lawyers.com.  You can go to that site and plug in the geographical locale where the malpractice occurred and the particular specialty that you’re looking for.  That specialty in this case would be medical malpractice.  The results page should show several different lawyers in that locale.  The advantage of using a site managed by a company like Martindale Hubbell is that this company rates lawyers.  The rating is based upon peer reviews.  What that means is that attorneys in that locale rate attorneys that they know.  The ratings system is anonymous so one attorney doesn’t know that other attorneys are providing such ratings.

The rating system maintained by Martindale Hubbell is not fool-proof but it is probably the best ratings system that exists.  Lawyers are rated A, B or C with A being the best.

Another source for finding an attorney is to simply go to one of the local bar associations.  Most local bar associations have referral services for attorneys.  This type of referring system is probably not as good as the one maintained by Martindale Hubbell but many of these local bar association referral services are quite good.

Of course there always exists the option of simply keying in your own search terms to your computer and seeing what comes up.

Choosing A Medical Malpractice Lawyer

In terms of actually choosing an attorney there are probably several factors that you may want to consider in that regard.  Certainly the experience level of the attorney is an important consideration.  Most attorneys don’t keep score as to how many cases they handle or how many cases they win or lose but those are appropriate questions to ask.  The attorney’s website may have some information as to what kind of results the attorney has gotten but of course you need to keep in mind that results in one case are not determinative as to what may happen in another case.

Most attorneys that handle medical malpractice cases will first want to review the records relating to the case and make a preliminary determination as to whether or not it appears that there is a case.  These cases can be extremely expensive to pursue.  Most attorneys handle these types of cases on a contingent fee basis.  That means that the attorney is putting their time at risk and they do not get paid unless they produce results.  Some attorneys will advance costs in cases like this although other attorneys require that the client pay for the costs of the litigation.  The costs associated with the litigation primarily relate to the retention of expert witnesses.  It is necessary in most medical malpractice cases to retain an expert witness to testify on behalf of the plaintiff.  Sometimes there may be a need for more than one expert witness.  Most of the physicians that do expert witness work charge a substantial hourly fee that they expect to be paid before they render any opinions and before they go to court.

These are all appropriate considerations in choosing an attorney to handle your medical malpractice case.

For more information about medical malpractice see the other pages on this site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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How Do I Find A Legal Malpractice Lawyer http://www.brienrochelaw.com/blog/how-do-i-find-a-legal-malpractice-lawyer/ http://www.brienrochelaw.com/blog/how-do-i-find-a-legal-malpractice-lawyer/#comments Mon, 20 Jun 2016 18:00:50 +0000 http://www.brienrochelaw.com/?p=9525 How Do I Find A Legal Malpractice Lawyer from Brien Roche Law

How do I find a legal malpractice lawyer? It may well be the easiest way and the first method should be employed is to check with friends or relatives to see if they have ever used a lawyer for pursuing … Continue reading

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How Do I Find A Legal Malpractice Lawyer from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses How do I find a legal malpractice lawyer

Brien Roche

How do I find a legal malpractice lawyer? It may well be the easiest way and the first method should be employed is to check with friends or relatives to see if they have ever used a lawyer for pursuing a legal malpractice case. If they have then inquire as to the nature of the experience. If those friends or relatives recommend the attorney then your first course of action should be to contact that attorney.

How Do I Find A Legal Malpractice Lawyer-Lawyers.com

There are a number of referral sources that are otherwise available. An excellent source is a website that is run by a company known as Martindale Hubbell. That website is lawyers.com. Once at that website you can key in the geographical locale and legal specialty you are interested in. A number of lawyers and law firms should come up on the results page. The advantage of using the Martindale Hubbell website is that this company is the premier lawyer rating service in the country. Their rating system is a peer rating system. That means that you have lawyers in the community who are rating other lawyers in that same community that they know. The ratings are A, B, C. An A rating is the best. This rating system is not foolproof but it is the best rating system out there. Martindale Hubbell reports that no more than 10% of the attorneys are given an A rating.

There are also some popular publications that reference superlawyers. The superlawyers publication is an advertisement. I have periodically looked at that publication and indeed most of the lawyers in there are very fine attorneys. You need to keep in mind however that the reason they are in that publication is because they paid a fee.

If you’re not satisfied with what you find in Martindale Hubbell then of course you can go to any of the search engines and key in your own search inquiry.

Most local bar associations also have lawyer referral services that frequently are quite good.

How Do I Find A Legal Malpractice Lawyer-Experience Counts

Once you have focused on one or more attorneys that you think may be appropriate you should interview each of them and feel free to ask whatever questions you have. There are not that many attorneys who have tried a large number of legal malpractice cases. Although I have handled hundreds of such cases I have never tried a legal malpractice case to conclusion. I like to think that is because I exercise good judgment in screening cases, exercise good judgment in picking clients and exercise good judgment in how I’m going to approach the case in terms of any resolution. It’s been my experience over the years, with one exception, that where attorneys have committed malpractice they admit it and step up to the plate and pay what is due. I can’t say that that is true with my experience in medical malpractice cases where doctors will fight the patient’s claim tooth and nail even though their liability may be crystal-clear.

How many legal malpractice cases a lawyer has tried to conclusion I do not believe should be your criterion for picking a lawyer. Any attorney who handles these types of cases knows that they are probably the most difficult of all the forms of litigation that exist. Within a legal malpractice case involving litigation you have to prove the case within the case and then you have to prove the case itself i.e. the legal malpractice. Likewise some attorneys who handle legal malpractice cases do not fully appreciate the significant burden that exist as to the causation element. As explained on some other postings on the site that hurdle can be significant.

For more information on legal malpractice cases see the other pages on this site and see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case Who Is Potentially Liable http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-who-is-potentially-liable/ http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-who-is-potentially-liable/#comments Sun, 19 Jun 2016 18:00:55 +0000 http://www.brienrochelaw.com/?p=9524 In A Legal Malpractice Case Who Is Potentially Liable from Brien Roche Law

In A Legal Malpractice Case Who Is Potentially Liable-A Broad Brush Approach In a legal malpractice case who is potentially liable is a question that must be answered in advance of suit being filed. The most obvious answer to the … Continue reading

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In A Legal Malpractice Case Who Is Potentially Liable from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case who is potentially liable

Brien Roche

In A Legal Malpractice Case Who Is Potentially Liable-A Broad Brush Approach

In a legal malpractice case who is potentially liable is a question that must be answered in advance of suit being filed. The most obvious answer to the question is that the attorney who handled the matter for the client may be potentially liable. If the attorney works for a law firm then the law firm may be potentially liable. If the law firm is a general partnership then all of the partners may be liable. In most instances the law firm is going to be a limited liability partnership which means that only the partnership is liable and not the individual partners. If the law firm is a professional corporation the same principle applies. If the law firm is a sole proprietorship owned by the individual lawyer then by suing the individual lawyer you’ve also sued the law firm.

If there was more than one attorney involved in the representation then each individual attorney may be liable. If there was another law firm that referred you to the law firm that wound up handling the matter then that referring law firm may be liable.

If the law firm that handled the matter for you has a partnership agreement with another law firm for the handling of matters like yours then that other law firm may also be liable.

In A Legal Malpractice Case Who Is Potentially Liable-Things To Review

To determine whether or not there are other persons or entities that may be potentially liable to you there are several things that need to be analyzed:
– the letterhead of the law firm
-who has signed any pleadings or court documents on your behalf filed with the court
-any articles of organization or incorporation of any of the law firms associated with your representation
-the website of each law firm associated with your representation
-any documents you can get from the legal malpractice insurance carrier insuring the lawyer and/or law firm handling your matter

Ideally all of these things should be reviewed prior to the filing of a legal malpractice action. In some instances not all of them are available pre-suit. They should become available during the discovery process once a lawsuit has been filed.

For more information on legal malpractice cases see the other pages on this site and see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case Is Expert Testimony Required http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-is-expert-testimony-required/ http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-is-expert-testimony-required/#comments Sat, 18 Jun 2016 18:00:44 +0000 http://www.brienrochelaw.com/?p=9523 In A Legal Malpractice Case Is Expert Testimony Required from Brien Roche Law

In a legal malpractice case is expert testimony required? The short answer is “yes” in most instances. A legal malpractice case is like any professional liability case. There is a standard of care that applies. That standard of care must … Continue reading

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In A Legal Malpractice Case Is Expert Testimony Required from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case is expert testimony required

Brien Roche

In a legal malpractice case is expert testimony required? The short answer is “yes” in most instances. A legal malpractice case is like any professional liability case. There is a standard of care that applies. That standard of care must be proven. In a legal malpractice case the standard of care is normally proven by another attorney with expertise in that area of the law testifying as to what the standard of care is. That of course is one thing that makes a legal malpractice case difficult. The client needs not only an attorney for representation in the case but also needs a second attorney as an expert witness as to the standard of care and also as to causation.

In A Legal Malpractice Case Is Expert Testimony Required-Better Safe Than Sorry

Going to trial without an expert witness to support the legal malpractice claim in most instances would be reckless and probably itself would be legal malpractice on the part of the attorney handling the legal malpractice case. That of course could potentially lead to the height of absurdity to have a legal malpractice case within a legal malpractice case.

The type of expert that is needed is going to be determined by the nature of the case. If the underlying case is an auto collision then the expert witness should be someone familiar with auto litigation. In some instances you can get into some very subtle issues of what is the standard of care. For instance in an auto collision case the attorney is obliged to file suit within the statutory period against the wrongdoer. Suppose however the attorney is only hired days before the statute of limitations expires and therefore doesn’t have sufficient time to identify all of the responsible parties and all of their employers or principals. In an auto collision the police report typically will identify all of the involved parties. The police however are not infallible. Sometimes they make mistakes. Sometimes they do shoddy work. Over the years I have seen police reports that do not identify all of the involved parties and sometimes even misidentify parties either due to sloppiness on the part of the officer or because someone lied to the officer as to their identity. If the attorney coming in the case at the last minute doesn’t have time to check all of that out then a lawsuit may be filed that doesn’t identify all of the proper parties. In addition a police report frequently does not identify the employer of all of the drivers or the person on whose behalf the driver may be acting. That information can be important because that may have some effect on the amount of available insurance coverage. If all of the potentially responsible parties have not been named in the lawsuit then their insurance policy may not apply. Exactly what the standard of care is in a case like that is very fact specific. What that means is that all of the pertinent facts need to be gathered, presented to an expert witness for evaluation and then factored into the determination of what is the standard of care and whether it was violated.

As such the short answer to the question posed above is that in most instances an expert witness is going to be required and even if one is not required it is probably prudent to have one on board to be prepared to testify in the event the need arises. That obviously adds to the expense of a legal malpractice case. The last thing that any attorney in a legal malpractice case wants to do is to commit legal malpractice.

For more information about legal malpractice see the other pages on the site and see the pages on Wikipedia

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case What Damages Are Recoverable http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-what-damages-are-recoverable/ http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-what-damages-are-recoverable/#comments Fri, 17 Jun 2016 18:00:04 +0000 http://www.brienrochelaw.com/?p=9520 In A Legal Malpractice Case What Damages Are Recoverable from Brien Roche Law

In a legal malpractice case what damages are recoverable frequently govern whether the claim is worth pursuing. Many attorneys reviewing a legal malpractice case look at the case from the backside i.e. what might the case be worth assuming all … Continue reading

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In A Legal Malpractice Case What Damages Are Recoverable from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case what damages are recoverable

Brien Roche

In a legal malpractice case what damages are recoverable frequently govern whether the claim is worth pursuing. Many attorneys reviewing a legal malpractice case look at the case from the backside i.e. what might the case be worth assuming all the necessary elements can be proved. In looking at the value of the case it must be kept in mind that a legal malpractice case is just a contract case. It is not a tort case. Contract damages are different than tort damages.

In A Legal Malpractice Case What Damages Are Recoverable May Define The Merits Of The Case

If the underlying case is a auto accident case which the attorney handled in a substandard fashion than the legal malpractice case value is going to be governed by what the auto accident case was worth. If the auto accident case was only worth $10,000 then the legal malpractice case will be worth no more than. There is no add-on because the attorney was negligent.

Within the context of a legal malpractice case the damages that are recoverable are frequently referred to as “hard damages” or “economic damages” as opposed to “soft damages” or “non-economic damages” which typically are not recoverable. Soft damages may be such things as emotional distress and other such non-economic damages. Economic damages are generally thought of as being readily quantifiable. Noneconomic damages are more subject to variation.

In A Legal Malpractice Case What Damages Are Recoverable Are Defined By The Underlying Case

If the underlying case properly involved the recovery of non-economic damages or soft damages than those damages are properly includable within the scope of what may be awarded in a legal malpractice case. What cannot be recovered in a legal malpractice case any damages in the nature of noneconomic damages that were not part of the underlying case. For example there is no basis for recovery for emotional distress damages as a result of the attorney’s negligence unless those damages were properly a part of the underlying case. Those specific types of damages could not be part of the underlying case because in the underlying case the attorney is not the one who would being sued and the attorney is not the one who caused the damages in the underlying case. The person who caused those damages is the one who was sued or should of been sued in the underlying case.

For more information on legal malpractice see the other pages on the site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case What Is The Case Within The Case Requirement? http://www.brienrochelaw.com/blog/case-within-the-case-requirement/ http://www.brienrochelaw.com/blog/case-within-the-case-requirement/#comments Thu, 16 Jun 2016 18:00:25 +0000 http://www.brienrochelaw.com/?p=9519 In A Legal Malpractice Case What Is The Case Within The Case Requirement? from Brien Roche Law

In a legal malpractice case what is the case within the case requirement is a critical question to be asked. This requirement most often applies in litigation matters. Within a legal malpractice case involving litigation plaintiff has to in effect … Continue reading

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case What Is The Case Within The Case Requirement? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case what is the case within the case requirement

Brien Roche

In a legal malpractice case what is the case within the case requirement is a critical question to be asked. This requirement most often applies in litigation matters. Within a legal malpractice case involving litigation plaintiff has to in effect prove to cases: the underlying case and then also the legal malpractice case.

The Case Within The Case Requirement-An Example

For example if the underlying case for which the attorney was retained is a medical malpractice case in the attorney’s handling of that case was somehow substandard than the party suing the attorney in the legal malpractice case must present the medical malpractice case and prove that there would’ve been a favorable verdict in that case for certain amount. That proof then constitutes the loss that was caused by the attorney’s substandard behavior. As a practical matter then you are trying to cases. First the medical malpractice case has to be presented and then the evidence in support of the legal malpractice claim must be presented. Some judges may give consideration to bifurcating or separating those two cases. For instance the medical malpractice case may be tried first and assuming that that verdict is in favor of the party bringing the claim in the legal malpractice case will be presented. If the case is a jury trial then one jury will hear both cases. Bifurcation is something that is frequently sought by the defense in these types of cases and typically is opposed by the plaintiff.

The Case Within The Case Requirement Does Not Always Apply

If on the other hand the case for which the attorney was retained was an estate planning matter that involved the preparation of a will then there is no case within the case requirement. In that instance it is simply a matter of whether or not the attorney complied with the client’s instructions and also complied with the applicable standard of care as to the particular task given to the attorney.

For more information on legal malpractice cases see the other pages on the site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case What Does Causation Mean? http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-what-does-causation-mean/ http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-what-does-causation-mean/#comments Wed, 15 Jun 2016 18:00:32 +0000 http://www.brienrochelaw.com/?p=9518 In A Legal Malpractice Case What Does Causation Mean? from Brien Roche Law

In a legal malpractice case what does causation mean is a question that is asked too infrequently. In so many legal malpractice cases causation is the key. In A Legal Malpractice Case What Does Causation Mean-Some Examples The me give … Continue reading

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case What Does Causation Mean? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case what does causation mean

Brien Roche

In a legal malpractice case what does causation mean is a question that is asked too infrequently. In so many legal malpractice cases causation is the key.

In A Legal Malpractice Case What Does Causation Mean-Some Examples

The me give some examples. Suppose an attorney takes on an auto accident case but fails to file suit within the time allowed by the statue limitations. That is a per se violation in the attorney is negligent. Some people, including lawyers, may think that that establishes a legal malpractice case. It does not. That may be one prong of a legal malpractice case. It does not consider however what may be the most important prong: causation. What did that per se violation cause? If the underlying auto accident case was a loser to begin with then the answer is that the substandard behavior didn’t cause any loss to the client. The client was going to lose the auto accident case any how. An argument could be made that the attorney actually did a favor to the client. That is the attorney save the client the cost and aggravation of pursuing a meritless case. That of course is a tough argument to make because the attorney should’ve known that the auto accident case with meritless.

Another example. Suppose the attorney is handling a zoning transaction for client. The task for the attorney is to convince local zoning officials that the property should be rezoned in order to accommodate the larger building that the client wishes to construct. The attorney fails to file the necessary paperwork in a timely fashion. During that resulting delay period there is a change in the political composition of the zoning board. The majority of the new zoning board is opposed to this larger structure. The political composition of the prior zoning board is a bit of an unknown i.e. how any one of them would’ve voted on this particular structure. Even though the attorney may have been negligent for the delay in filing the paperwork is going to be extremely difficult to show that delay caused damage to the client because the prior zoning board may have rejected the zoning request anyhow.

Another example. Your attorney has tried a case for you and the verdict was unfavorable. The attorney did a fine job at trial. You instruct the attorney to file an appeal. The attorney misses the deadline for filing the appeal. This is a per se violation in the attorney is probably negligent. The question then becomes would you have prevailed on appeal. That involves a large dose of guesswork i.e. trying to figure out what several judges on the appellate court may or may not do. That guesswork probably defeats the claim i.e. it becomes almost impossible to conclude that the appellate court would’ve reversed the trial court decision. As such the critical element of causation is missing.

In A Legal Malpractice Case What Does Causation Mean-A Critical Analysis

The critical nature of analyzing a legal malpractice case from the point of view causation cannot be overemphasized. Causation or more importantly lack of causation is frequently the key issue in this analysis. The failure to fully understand that can cost everybody a lot of time and money.

For more information on legal malpractice cases see the other pages on the site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case When Does The Attorney Client Relationship End? http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-when-does-the-attorney-client-relationship-end/ http://www.brienrochelaw.com/blog/in-a-legal-malpractice-case-when-does-the-attorney-client-relationship-end/#comments Tue, 14 Jun 2016 18:00:11 +0000 http://www.brienrochelaw.com/?p=9517 In A Legal Malpractice Case When Does The Attorney Client Relationship End? from Brien Roche Law

In a legal malpractice case when does the attorney client relationship end can be a critical question. In some instances the ending of that relationship defines when the statute of limitations begins to run. This so-called continuous representation rule I … Continue reading

for more personal injury news and views visit, Brien Roche Law

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In A Legal Malpractice Case When Does The Attorney Client Relationship End? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In a legal malpractice case when does the attorney client relationship end

Brien Roche

In a legal malpractice case when does the attorney client relationship end can be a critical question. In some instances the ending of that relationship defines when the statute of limitations begins to run. This so-called continuous representation rule I do not believe is well-defined. The mere fact that representation on one issue may be continuing between the attorney and the client does not mean necessarily that the statute of limitations for some other issue may not have begun to run.

How Does Multiple Representation Impact The Attorney Client Relationship?

For instance, suppose the attorney is handling several different matters. In that instance does continued representation on one matter effect the statute limitations as to another matter where you have a complaint about the attorney’s performance or lack of performance.

That can be a tricky issue. The better practice is to operate on the premise that the statute limitations begins to run when the damage is done. Typically the damage is done when the attorney renders the substandard performance. If the substandard performance is failure to call a necessary witness during trial which then results in the loss of the case, the damage is done when the verdict is rendered. The substandard performance may have occurred earlier than the verdict date but at that point there was no actual damage. In that instance, the better practice would be to operate on the premise that the statute of limitations began to run on the date of the verdict. That may be a somewhat conservative view of this issue but it is better to be safe than sorry. The statute limitations is an absolute bar to recovery. If it is not complied with the case is lost. There is no sense in hedging your bets on that issue.

Using A Closing Letter To End Attorney Client Relationship

Many attorneys will formally end the attorney client relationship with a closing letter. That closing letter formally concludes the relationship and leaves no doubt as to when the relationship ended.

For purposes of pursuing a legal malpractice claim it makes no sense to allow the attorney client relationship to continue if you are considering making a claim against the attorney. For instance, if you allow the attorney to continue handling some matters for you when you have retained other counsel to sue that attorney then that fact may be used against you in your legal malpractice claim. It is best to avoid that.

For more information on legal malpractice issues see the other pages on the site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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In Legal Malpractice Cases When Is The Attorney Client Relationship Formed? http://www.brienrochelaw.com/blog/in-legal-malpractice-cases-when-is-the-attorney-client-relationship-formed/ http://www.brienrochelaw.com/blog/in-legal-malpractice-cases-when-is-the-attorney-client-relationship-formed/#comments Mon, 13 Jun 2016 18:00:02 +0000 http://www.brienrochelaw.com/?p=9516 In Legal Malpractice Cases When Is The Attorney Client Relationship Formed? from Brien Roche Law

In legal malpractice cases when is the attorney client relationship formed? The answer to that question typically is based on when the contract is formed. The attorney-client relationship is inherently a contractual relationship. What that means is that a contract … Continue reading

for more personal injury news and views visit, Brien Roche Law

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In Legal Malpractice Cases When Is The Attorney Client Relationship Formed? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In Legal Malpractice Cases When Is the Attorney Client Relationship Formed

Brien Roche

In legal malpractice cases when is the attorney client relationship formed? The answer to that question typically is based on when the contract is formed. The attorney-client relationship is inherently a contractual relationship. What that means is that a contract is entered into. That contract may be in writing. In the alternative the contract may be oral. Either one is equally enforceable.

When Is The Attorney Client Relationship Formed-No Retainer

There may be instances where the client does not fully appreciate that a contract has been entered into. The attorney however should appreciate that and understand that. What I mean by that is that if you contact an attorney and seek legal advice and the attorney gives you legal advice then at that point there probably is a contract. The fact that you have not paid the attorney makes no difference. The fact that the attorney did not ask for payment makes no difference. A contract however has been entered into. Keep in mind that a contract simply put is a matter of an offer being made which is then accepted and there is a passing of some consideration or what may be called quid pro quo. The quid pro quo is simply the meat of the deal. In the above example the potential client asked for advice and the attorney gave it. The consideration is either the reliance by the client on the advice or the expectation by the attorney that the advice is going to lead to the payment of a fee to the attorney. Either way the attorney-client relationship has probably been created in that instance.

When Is The Attorney Client Relationship Formed-Retainer

The more typical example of the creation of an attorney-client relationship is where a formal written retainer agreement is signed by both parties. That retainer agreement may be called such or it may be simply a letter that the attorney sends to the client setting forth the terms of the representation. That letter then becomes the contract even though it may not have been signed by the client.

In dealing with attorneys it is probably important to make sure that a formal written retainer agreement is signed. That way you know what to expect of the attorney and you know what the attorney expects of you. Keep in mind that any agreement is a two-way street. You have expectations of the attorney. The attorney has expectations of you. Those should be defined in writing.

Precisely when the attorney-client relationship is formed may have some bearing on claims you may have against the attorney. If the relationship was never formed then there may be no basis for a claim even though you think the attorney may have been representing you and may have done a bad job doing so. As mentioned above typically when the relationship arose is going to be governed by when the agreement was entered into.

When the relationship ends can also be important because in some instances that may govern when your statute of limitations begins to run for purposes of any claims you may have against the attorney. Most attorneys will send a closing letter to the client saying that the representation has ended. That is not required but it is a good practice. If the attorney has not done that then typically the representation ends when the attorney has finished the task that is the subject of the retainer agreement.

For more information about legal malpractice see the other pages on this site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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What Does Standard Of Care Mean In A Legal Malpractice Case http://www.brienrochelaw.com/blog/what-does-standard-of-care-mean-in-a-legal-malpractice-case/ http://www.brienrochelaw.com/blog/what-does-standard-of-care-mean-in-a-legal-malpractice-case/#comments Sun, 12 Jun 2016 18:00:56 +0000 http://www.brienrochelaw.com/?p=9515 What Does Standard Of Care Mean In A Legal Malpractice Case from Brien Roche Law

What does standard of care mean in a legal malpractice case? The short answer is that “it depends”. It depends on the nature of the case and it depends on the particular activity within that case. What Does Standard Of … Continue reading

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What Does Standard Of Care Mean In A Legal Malpractice Case from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses What does standard of care mean in a legal malpractice case

Brien Roche

What does standard of care mean in a legal malpractice case? The short answer is that “it depends”. It depends on the nature of the case and it depends on the particular activity within that case.

What Does Standard Of Care Mean In A Legal Malpractice Case – Per Se Violation

Let me try to be more specific. In an auto accident case the standard of care dictates that the attorney file suit within the statute of limitations. That is the standard of care. The failure of the attorney to file suit within that period of time is a breach or violation of the standard of care. The attorney may be liable for legal malpractice in that instance.

The failure to file any lawsuit to preserve the client’s rights would generally be a per se violation. A per se violation is one wherein the attorney is negligent per se. Changing the context a bit, it would be like a surgeon operating on the wrong leg.

What Does Standard Of Care Mean In A Legal Malpractice Case – No Per Se Violation

In the context of trying an automobile accident case there may be certain standards of care that apply to how the trial should be conducted. For instance the failure to call an expert witness to prove the plaintiff’s injuries may be a breach of the standard of care if in fact that testimony was necessary from the expert, the appropriate financial arrangements had been made between attorney and client as to who would pay for the expert and those arrangements have been made in time to properly designate and call the expert as a witness. As you can see from that example the standard of care is not as clear-cut and crisp as it is in the instance of failing to file suit on time. In many instances trying to establish the standard of care can be difficult. It can be especially difficult in those instances where there may be a difference of opinion as to exactly what is the standard of care. In regards to a per se violation there is no difference of opinion. In most other instances there may well be a difference of opinion.

In those cases where there is no per se violation the standard of care is established by calling as a witness another attorney with expertise in that specific area of the law. In defending the case, the attorney you are suing may well present contrary expert testimony. In that instance the judge or jury has to decide which expert to believe and which standard of care to apply.

In some cases it may be impossible to truly establish what is the standard of care. For instance, in a case where the law is unclear there may be no standard of care as to what the attorney is obliged to do or not do. In that type of instance where the law is unclear the standard of care may be simply that the attorney is obliged to tell the client the law is unclear and therefore the path forward is uncertain. In that instance all the attorney can do is to give advice as to which path to follow with both parties recognizing there is a degree of uncertainty. In that instance if the attorney happens to be wrong there may not be any violation of the standard of care and therefore no basis for a legal malpractice claim.

The practice of law is referred to as a profession because it involves a good deal of judgment. The use of judgment inherently means that sometimes there is no bright line rule to be followed. There is simply judgment to be exercised. That realm of judgment may be very broad; meaning that one attorney may do things one way and another attorney who is equally competent may do things another way. They may both be acting within the standard of care even though their performance is dramatically different.

For more information on legal malpractice see the other pages on this site and also see the pages on Wikipedia

for more personal injury news and views visit, Brien Roche Law

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