Legal Malpractice: Do You Have a Viable Case?

People turn to attorneys because they need legal help during some of the most stressful and devastating times of their lives. Clients expect to be in good hands. They count on their attorney to have their best interests in mind and to utilize the law in a way that achieves the best possible outcome for them.

Unfortunately, incompetence, overloaded schedules, poor communication, and disorganization can lead to a legal disaster. When this happens, the individual may have a case for a legal malpractice claim.

The state of Colorado limits how long you can file a malpractice case. If you believe you’re the victim of legal malpractice, we strongly encourage you to have a legal malpractice attorney review your circumstances. A negligent attorney should be held liable for their mistakes and oversights that hurt your case.

Common Reasons for Malpractice Lawsuits

“A lawyer shall act within reasonable diligence and promptness in representing a client.”
[Colorado Rules of Professional Conduct, Rule 1.3]

From missing important court deadlines to overlooking a conflict of interest in your case, lawyers can make mistakes and unethical choices that result in damage to you and your case. Let’s take a look at some of the most common reasons a legal malpractice lawsuit is filed. 

• • Missed Deadlines
  • Failure to File (or Properly File) Documents
  • Missed Court Appearances
  • Lost Document

These errors can lead to a whole host of problems for the client, such as a case being dismissed, an unfavorable judgment, and loss of potential damages. 

“Failure to file a personal injury claim on behalf of client, which results in statute of limitations running against the client’s claim, warrants three-year suspension from practice of law with reinstatement conditioned upon attorney satisfying legal malpractice judgment, in light of aggravating factors including prior discipline.”
[People v. Bergmann, 1990, 790 P.2d 840]

• • Failure to Know and/or Apply the Law

In order to use the law correctly, attorneys must know the area of law in which they specialize. Additionally, they must understand the laws pertaining to their specific jurisdiction. Failing to know or apply the law can result in harm to a client.

• • Inadequate Investigation

The discovery phase is an important step in a case. Attorneys are responsible for ensuring they uncover the facts of the case, including key witnesses and evidence. If an attorney doesn’t spend enough time on discovery it could cost the client the case.

• • Failure to Get the Client’s Consent
  • Failure to Follow the Client’s Instructions
  • Failure to Inform the Client About Implications or Possible Outcomes

These types of communication failures can have major implications on a case’s outcome.

The Essential Elements Needed to Sue an Attorney for Malpractice

Perhaps you expected more out of the settlement, or maybe you felt like the judge should have awarded you more money. If only your attorney had done a better job, right? Maybe.

An unfavorable settlement or judgment does not automatically constitute legal malpractice. You will have to prove a number of elements to pursue a lawsuit and achieve a favorable outcome.

Here’s what Colorado courts say you have to prove to establish a legal malpractice claim:

• the attorney owed a duty of care to the client; and
• that attorney breached that duty; and
• that by breaching that duty, the attorney proximately caused damage to the client.[Stone v. Satriana, 41 P.3d 705, 712 (Colo.2002)]

 In other words, you have to show that:

• you and the attorney had a legal relationship (you hired him or hire, signed paperwork, paid a retainer, etc.); and
• your former attorney did not meet the legal profession’s standards, and, therefore, was negligent; and
• you would not have suffered an injury (missed collecting a nice financial award, for example) if the attorney had not been negligent.

You’ll have to prove all of this – and more – to have a successful case. So let’s dive in to the “more” part of what you’ll have to prove.

Attorney Mistakes Don’t Always Mean Negligence

 Look, lawyers are human. While they may be considered experts, if you will, in the area of law in which they practice, they undoubtedly will make mistakes from time to time. A wrong decision by the attorney, for instance, could cost their client the case.

The questions that must be answered are:

• Was the decision negligent?
• Did it cause the client harm?
• Could the harm have been avoided but for the attorney’s alleged negligence?

The answer to these questions will show whether there is causation, or a direct link, between the attorney’s breach of duty to you and the harm you suffered.

The “’but for’ test” is a common way to prove causation in a legal malpractice case. Simply put, here’s how the test works:

Let’s say you have oral surgery, and now you have extensive nerve damage. You can’t taste foods like you used to, and there’s a large portion of your face that is permanently numb.

You thought you had a good case to sue your dentist for malpractice. So did your former attorney. However, your case was dismissed because your former attorney missed a major deadline.

But for the attorney’s actions or omissions (the missed deadline), you had a good chance to win your case and be awarded damages.

Merely demonstrating your previous case – also called the “underlying case” – could have won will not be enough to succeed in a legal malpractice case.

The Colorado Supreme Court asserts the plaintiff in a legal malpractice action (you) must also prove the underlying case, had it won, would have been collectible.

“The court holds that because the collectibility of the underlying judgment is essential to the causation and damages elements of a client’s negligence claim against an attorney, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.” [LeHouillier v. Gallegos]

So what does collectibility mean?

It means that you could have collected the damages awarded to you in your underlying case. Let’s take a look at some examples.

Example 1: Uncollectible

Let’s stick with the damaged nerve scenario. The attorney you hired to sue your dentist for your nerve damage let the statute of limitations run out before the lawsuit could be filed. As a result, you will never be able to sue your dentist.

You’re in good company if you think, “My former lawyer royally screwed up. I’ve got a case to sue my lawyer.” So you hire an attorney to file a lawsuit against your former negligent attorney.

Your new lawyer, however, discovers your dentist filed for Chapter 7 bankruptcy months before you considered suing them for the nerve damage. As a result of the bankruptcy, all of the dentist’s assets were sold to pay their outstanding debts.

Your legal malpractice case just went down the drain.

Why? Because even if you had won your case and been awarded a sum of money, you would not have been able collect the money because your dentist is financially insolvent – aka broke.

Your legal malpractice case would be considered uncollectible.

Example 2: Collectible

Continuing with the nerve damage lawsuit example, let’s say the dentist did not file for bankruptcy. Instead, the dentist’s finances are stable, and they carry malpractice insurance.

If you have compelling evidence to prove the dentist was negligent and that you would have been awarded damages, you likely have collectible legal malpractice case.

Building Your Case with Expert Testimony

If you do, in fact, have a collectible legal malpractice case, your attorney may have to hire legal expert witnesses. These individuals would testify that your former attorney was indeed negligent when they represented you.

“Generally, except in clear and palpable cases of legal malpractice, expert testimony is necessary to establish standards of acceptable professional conduct from which alleged deviation has occurred.”
[Zick v. Krob, App. 1993, 872 P.2d 1290]

Most malpractice cases against an alleged negligent attorney will require expert testimony, and this can be costly. That’s why a malpractice attorney will only take cases in which they can prove all required elements.

Find Out if You Have a Legal Malpractice Case

Your legal malpractice case must be filed within two years from the time that you knew, or should have known, your attorney acted negligently.

“The statute of limitations bars legal malpractice actions based on negligence brought more than two years after the action accrues.”
[§13-80-102, C.R.S. 2014; Morrison v. Goff, 91 P.3d 1050, 1052 (Colo.2004)]

It’s unfair that you reached out to an attorney for help and their representation left you in a worse position than before you hired them.

Give our legal malpractice attorneys a call at 303-688-0944 or schedule a time online.