Brien Roche Law http://www.brienrochelaw.com Wed, 06 Jul 2016 18:00:46 +0000 en-US hourly 1 Statute of Limitations In Medical Malpractice Cases http://www.brienrochelaw.com/blog/statute-of-limitations-in-medical-malpractice-cases/ http://www.brienrochelaw.com/blog/statute-of-limitations-in-medical-malpractice-cases/#comments Wed, 06 Jul 2016 18:00:46 +0000 http://www.brienrochelaw.com/?p=9528 Statute of Limitations In Medical Malpractice Cases from Brien Roche Law

.In a medical malpractice case what is the statute of limitations is typically the first question that any attorney is going to ask in reviewing a case.   Statute of Limitations In Medical Malpractice Cases Must Be Addressed Early In … Continue reading

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Statute of Limitations In Medical Malpractice Cases from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Statute of Limitations In Medical Malpractice Cases

Brien Roche

.In a medical malpractice case what is the statute of limitations is typically the first question that any attorney is going to ask in reviewing a case.
 

Statute of Limitations In Medical Malpractice Cases Must Be Addressed Early

In general in Virginia the statute of limitations is two years. The tricky part of a statute of limitations analysis is when does the statute begin to run?  Normally it begins to run on the date of the negligent act. The negligent act is the substandard or subpar conduct by the physician or health care provider which caused injury to the patient.  Frequently however the patient remains under the care of that physician for that particular condition for some time after the substandard act or omission occurs.  If that is the case then the statute of limitations may not begin to run until the end of that continuous treatment period.  The question of whether or not that so-called “continuous treatment rule” applies is a tricky question and you should not assume that just because you remained under the care of that physician that therefore the continuous treatment rule applies.  That is something that a legal professional needs to express an opinion on and give you advice on.  The better practice in terms of handling medical malpractice cases is to operate on the premise that the statute of limitations begins to run when the patient suffers some injury as a result of the substandard conduct of the health care provider.  That statute of limitations then runs for a period of two (2) years in that instance.

Statute of Limitations In Medical Malpractice Cases Can Be Variable

There are other cases where the statute of limitations may not begin to run at the time of the substandard conduct by the doctor.  Those particular circumstances apply to instances normally where some surgical equipment is left inside the patient.  Those again involve some tricky issues and in order to determine exactly when your statute of limitations may begin to run you need to seek legal advice from an experienced practitioner.

Likewise there is a somewhat different statute of limitations that may apply to minors.  The Virginia General Assembly over the last many years has tinkered with that statute of limitations and as such if you’re dealing with a case involving a minor you need to seek prompt legal advice to get an opinion as to when that statute of limitations began to run and when it expires.

The rule of thumb that you should follow is that the statute of limitations is two (2) years from the date that the healthcare provider engaged in the act or omission that caused you injury.

For more information on medical malpractice, 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 Medical Malpractice Case What Does Causation Mean? http://www.brienrochelaw.com/blog/in-a-medical-malpractice-case-what-does-causation-mean/ http://www.brienrochelaw.com/blog/in-a-medical-malpractice-case-what-does-causation-mean/#comments Tue, 05 Jul 2016 18:00:22 +0000 http://www.brienrochelaw.com/?p=9532 In a Medical Malpractice Case What Does Causation Mean? from Brien Roche Law

.In a medical malpractice case what does causation mean is an important question to have answered.  In “legal lingo” causation means proximate cause.  The word proximate technically is the opposite of approximate.  In common usage approximate means “almost”.  The technical … Continue reading

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In a Medical Malpractice Case What Does Causation Mean? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses In A Medical Malpractice Case What Does Causation Mean

Brien Roche

.In a medical malpractice case what does causation mean is an important question to have answered.  In “legal lingo” causation means proximate cause.  The word proximate technically is the opposite of approximate.  In common usage approximate means “almost”.  The technical definition of approximate means “not near”.  The word proximate means literally “near”.  As such the way to think of proximate cause is that it is the near cause as opposed to the remote cause.  This concept is explained in a bit more detail in my book entitled Law 101.   The example that I gave in that book of proximate cause is an instance where a father is playing a game of catch with a child and the father throws the ball a bit too hard and as a result it goes through the neighbor’s window, out through the window into the back of the house onto the back porch knocking over the metal grill which then rolls down the hill and strikes another neighbor in that downhill yard.  That other neighbor dies from the impact.  The question then arises as to whether or not the father’s negligence is a proximate cause of the neighbor’s death.  That ultimate question probably would be submitted to a jury for determination.  However from an objective point of view it’s difficult to imagine that the father’s negligence is the proximate or near cause of the neighbor’s death since the father had no real reason to expect that the ball he was throwing would necessarily go through the neighbor’s house from front to back, out the back window, hit a grill, knock the grill down the hill and kill a neighbor at the bottom of the hill.  That is not something that is reasonably foreseeable and therefore probably there is no proximate cause there.  If on the other hand the ball had hit the homeowner who was standing in the front window looking at the father and child having a game of catch then it is more likely in that instance that there might be a finding of proximate cause i.e., that the father’s negligence was a proximate cause of the neighbor being struck.

In a Medical Malpractice Case What Does Causation Mean Is Best Answered by Looking at Forseeability

In the context of a medical malpractice case that type of analysis may have some application although the analysis tends to be more complicated.  That is, a frequent defense in a medical malpractice case is that even if the doctor was negligent the patient would have died anyhow.  If that is the case then the doctor’s negligence is not a proximate cause of the death of the patient.  I call this defense the “shit happens” defense.  That type of defense is especially pertinent in misdiagnosis cases where the doctor has not made the proper diagnosis and as a result the patient dies.  The defense that is frequently asserted is that even if the diagnosis had been made at that time the outcome would have been the same i.e., death.

The point to be made in regards to causation is that this frequently is a sticky point in regards to a medical malpractice case.  Many medical malpractice cases are tried on that issue.  In many cases there is no significant issue as to the doctor’s fault but rather it becomes a question of whether or not that fault was in fact a proximate cause of damage to the patient.

As such it is important for the patient or the client to understand this concept of causation.

For more information on medical malpractice 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 Medical Malpractice Case Who is Potentially Liable? http://www.brienrochelaw.com/blog/in-a-medical-malpractice-case-who-is-potentially-liable/ http://www.brienrochelaw.com/blog/in-a-medical-malpractice-case-who-is-potentially-liable/#comments Sun, 03 Jul 2016 18:00:37 +0000 http://www.brienrochelaw.com/?p=9533 In a Medical Malpractice Case Who is Potentially Liable? from Brien Roche Law

In a medical malpractice case who is potentially liable frequently becomes a difficult question. In A Medical Malpractice Case Who Is Potentially Liable Is A Question That Must Be Answered For instance in an emergency room case you may think … Continue reading

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In a Medical Malpractice Case Who is Potentially Liable? from Brien Roche Law

Fairfax Injury Lawyer Brien Roche In a Medical Malpractice Case Who Is Potentially Liable

Brien Roche

In a medical malpractice case who is potentially liable frequently becomes a difficult question.

In A Medical Malpractice Case Who Is Potentially Liable Is A Question That Must Be Answered

For instance in an emergency room case you may think that the emergency room doctors are employees of the hospital.  Frequently they are not.  In many instances they are employees of an independent corporate entity that has a contract with the hospital to provide emergency room services.  As such if you sue the hospital for the negligence of the emergency room physician you may find that you have sued the wrong entity.

That same situation may apply in regards to radiology, pathology, anesthesiology.  Frequently all of these professionals are employed by a corporation that is independent of the hospital.  The best way to determine who employs the particular physician is to look at the bill that was rendered.  Generally on the bill the name of the entity that is providing the service rendered by the ER doctor is going to be identified.  Likewise on that bill the name of the entity that employs the radiologist who may have misread your cat scan is going to be identified.  The same thing applies to the anesthesiologist and sometimes to the pathologist.

Many physicians operate under the umbrella of a professional corporation or a limited liability partnership.  That entity may be their employer.  In a medical malpractice case it’s important to find out who is the employer or principal of the physician that you say rendered the negligent service and to join that entity as a party to the lawsuit.

If the entity that employs the physician is a professional corporation or limited liability partnership what that means is that the entity may also be liable for the negligence of that physician but the other members of that entity are not necessarily liable.

It also becomes important to determine whether or not that entity is properly licensed and registered with the state.  If it is not then it may not have certain protections that may be provided by your state law in terms of any caps on damages.

If the thrust of your case is that the negligence was committed by a nurse or other staff member within the hospital then you need to confirm that in fact that nurse or other staff member is indeed an employee of the hospital.  In most instances they are but there could be instances where staff nurses or even staff physicians are not employees of the hospital but rather are employed by an independent entity.

A Full Investigation Is Necessary

The point to be made is that there may be a number of different entities that could be liable in your medical malpractice case.  All of that needs to be explored.

For more information on medical malpractice 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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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

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

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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

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

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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

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

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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

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

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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

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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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