Wednesday, March 23, 2011

Are Experts Necessary in a Legal Malpractice Case?

A legal malpractice case is different from other types of cases in that not only must it be proven that the lawyer screwed up, it must also be proven that the underlying case would have been successful. In order to prove that the lawyer screwed up, evidence needs to be presented to show that there the lawyer had a duty to the client, the lawyer breached that duty and because of that the client suffered damages.

In a recent Connecticut Appellate Court decision, a client filed a legal malpractice claim against her former lawyer for the mishandling of her divorce proceeding. After the client and her former spouse reached a settlement agreement, they appeared in court to finalize it however the client refused to proceed. Her lawyer successfully withdrew from the case and the client represented herself at trial. The lawyer filed suit against the client to recover unpaid legal fees and the client, continuing to represent herself, filed a counterclaim for legal malpractice. During the legal malpractice proceeding, the judge would not allow the client to testify as to the harm she suffered while representing herself in the underlying divorce action because a lay person is not allowed to give expert testimony. The client did not have an expert witness to testify on her behalf and therefore she was unable to prove her claim.

In the state of Connecticut, a legal expert must testify to prove certain aspects of a legal malpractice case. It is evident by the above decision that the courts strictly adhere to this requirement. The only exception the court notes is when the lawyer’s conduct is so obviously negligence that an expert would become unnecessary. In short, unless the lawyer handling your legal malpractice case believes she can prove that your prior lawyer’s conduct was so obviously negligent that an expert is unnecessary, you should be prepared to have an expert offer an opinion in your legal malpractice case. Contact our office to discuss your potential legal malpractice claim.

Thursday, March 10, 2011

Pie on the Face of a Judge and Lawyer who use Facebook

In one of my previous blogs, I addressed the topic of Social Networking sites and the professional responsibilities involved with utilizing one of the many vastly popular websites. Recently this topic has reemerged in the spotlight, based on the actions of a North Carolina judge and defense attorney.

The case began as a child custody matter. During a meeting with counsel in chambers, the judge brought up the topic of Facebook, a popular social media website. Counsel for the plaintiff who did not have a page is reported as being unfamiliar with it. Counsel for the defendant did. The problem began when the judge and defense attorney became Facebook “friends” and by doing so, they were able to read and create posts on each others pages.

The defense attorney posted a question looking for suggestions on how to prove something in a case he was working on, yes, the same case that was before the judge. The attorney also posted a comment that was highly flattering to the judge. The judge posted a comment on his page about the case, indicating that he has two good parents to choose from.

The problem is that the attorney and judge were essentially engaging in ex-part communications by discussing the case outside of the presence of counsel for the plaintiff, which is strongly discouraged by the ethical rules. However, the judge’s problems didn’t stop there. He went on to search the internet and locate the plaintiff’s website displaying her photography and poems. While he was issuing his decision in court, the judge quoted from one of the plaintiff’s poems in his own decision, thereby revealing the fact that he had conducted his own outside research about the parties which is also strongly discouraged by the ethical rules.

The moral here is if an attorney or judge is going to make the choice to communicate with friends and family via a social networking website, make sure the boundaries of ethical obligations regarding such communications are clear and stay as far away from them as possible.

Friday, March 4, 2011

Failure to Timely File in Workers’ Compensation Can Be Malpractice

Lawyers have a duty to represent their clients competently no matter what type of case it is. A lawyer’s failure to do so can result in a legal malpractice claim against him or her. For example, even a case that seems straightforward, like a workers’ compensation injury, can quickly go awry if the lawyer makes a costly error.

A client is injured at work and seeks medical treatment in addition to advice from a lawyer. The lawyer works with the client to get her weekly checks started and her medical bills covered. Once the client has completed her medical treatment, and the doctor has determined that she has reached maximum medical improvement, the lawyer has a duty to get the information from the doctor and file certain paperwork with the workers’ compensation commissioner in a timely manner to ensure that the client receives all of the benefits she is due. Failure to do so could bar the client from part of her recovery.

Something as simple as a failure to follow-up on a medical record or file a form can cost a client greatly. If your lawyer screwed up your workers’ compensation case call our office today to discuss your options.