HOW TO RECOGNIZE AND HANDLE LEGAL MALPRACTICE
With the explosion of litigation in our society
and the abundance of lawyers, more and more people
are finding themselves involved in lawsuits. Getting
involved with lawyers is not much fun. It can be
extremely expensive and draining emotionally, as
Moreover, a lawyer who does not perform in a
professional manner can seriously injure the
financial and other rights of his clients. Legal
malpractice is a national epidemic, as has been
recognized as such by former Chief Justice Warren
Burger who has been quoted as saying that 75% of all
lawyers are "dishonest or incompetent." While
undoubtedly an exaggeration, this remark was no
doubt based on some upsetting observations.
Before you hire a lawyer, please do one thing:
Ask your lawyer if he carries malpractice insurance,
and to show you a copy of the policy. If he doesn't
or if he is perturbed that you ask the question,
don't hire him. Why? Because if there is no
insurance to cover his mistakes, you may never get
justice if your lawyer makes a mistake, and the
chances are not unreasonable the he (or she) will.
There are five common mistakes that lawyers make,
and here is how they affect you.
1.Lawyers often forget to keep calendars up to
date, and miss important deadlines for filing
documents. It could mean forgetting to file
pleadings in litigation, or even forgetting to
appear in a court hearing. It happens more often
than you would care to imagine.
2.Lawyers often forget to send important
documents or copies of pleadings to clients. This
can interfere with how a case is handled and its
3.Lawyers can get pressured for cash and settle
cases too low. Massachusetts courts now permit
lawyers to be sued for settling cases too low.
4.Lawyers often do not listen to clients. Too
many lawyers do not respect the client enough to
listen to the client, return phone calls, and to
allow the client sufficient input into the handling
of the case. Guess who ends up paying in the end?
5. Poor preparation. Too many lawyers are lax
when it comes to the handling of trial preparation.
Failure to interview witnesses, failure to rehearse
favorable witnesses before putting them on the
stand, and poor investigations hamstring the lawyer
at trial, or force a low settlement. Moreover,
thorough legal research is often required, but not
A major factor which leads to this problem is
that lawyers, often pressed for money, will practice
outside their field. The American Bar Association
recognizes 49 areas of specialty.
A lawyer cannot possibly keep up with the changes
in the law in more than 2 or 3 areas. So what do you
do? Make sure your lawyer specializes. Don't let a
lawyer who is an expert in trusts handle a criminal
defense trial unless he is really qualified. Ask
your lawyer what his expertise is.
Understand what kind of relationship you will
have with your lawyer before it gets going, to help
prevent a malpractice situation from arising.
Have a fee agreement in writing. Tell your lawyer
you want to be kept informed of all developments in
the case, and receive copies of all documents and
Let the lawyer know that returning phone calls is
important, and drop notes to the lawyer to keep a
paper trail to memorialize what you are trying to
tell him. Naturally, keep copies of the letters and
notes you send the lawyer.
If things work out badly, ask for your file. Go
to the courthouse and make a copy of what the
official file contains. If you notice some troubling
issues, such as a case being dismissed for something
your lawyer didn't do, such as appear for a motion
or filing a pleading, you must locate a lawyer who
is willing to sue other lawyers. There aren't a
whole lot of such lawyers. Most lawyers won't do it.
Bar Associations, Yellow Pages listings and word
of mouth recommendations might help, but this is an
area that calls for the attention of a specialist.
Further, it may be necessary to go to another city
or other part of the state to locate someone willing
to take on a local lawyer.In any event, do not
suffer in silence. The law is with you.