The Nature Of Legal Malpractice In Illinois
Legal malpractice is a professional negligence claim brought against a lawyer for the mishandling of a legal matter. In these cases, the client has generally suffered some form of loss due to the lawyer’s actions or inaction. Illinois law provides the framework for determining whether or not there has been legal malpractice and whether the lawyer will be held liable.
Several common scenarios qualify as legal malpractice. They range from pressing forward with a client’s lawsuit without sufficient grounds to do so, to failing to appear for court dates, to committing errors and omissions during a case, which result in a negative outcome for a client. Failure to communicate is also a strong basis for claiming legal malpractice, as clients have a right to know what is going on with their cases at all times.
Generally, in a legal malpractice case, the plaintiff must show that an attorney violated an obligation that was owed to him, and as a result of the breach, the plaintiff was damaged. This means that not only must the plaintiff prove that the defendant breached a standard of care, but also that the plaintiff suffered damages and the breach was the direct cause of those damages. Of course , there are many nuances to this simple framework, and each attorney should be consulted about the viability of a malpractice case on its own merits.
There are several laws that are particularly relevant in legal malpractice cases in Illinois. First, we have common law which is the body of unwritten law that evolves through common practices. This body of law can differ among states. For example, the statute of limitations for claims of legal malpractice in Illinois is two years. Common law also helps define an attorney’s duty of care, which arises out of a special relationship between the parties involved.
Illinois also has certain statutes concerning legal malpractice. The statute of limitations governs how long a potential plaintiff has to file a legal malpractice claim in court. Time is of the essence in legal malpractice litigation and several deadlines are tied to the initiation of the Illinois legal malpractice lawsuit. For instance, if you did not discover the malpractice until some time after it occurred, under the "discovery rule" you may have up to two years after the date of discovery to file your claim, but not more than six months after the end of your case.
Why You Really Do Need A Legal Malpractice Attorney
Your rights depend on the type of attorney you have and the quality of work they do. This is a paradoxical statement. We believe, and hope that our attorneys know what they are doing, and that they put us in the best position to protect our rights in litigation. However, the truth is very different. If you look at our legal malpractice cases, most arise from issues in the contested "breach" of duty. In common terms, a legal malpractice case is about what your attorney did or didn’t do for you in your case. How did they protect your rights and yours interests? Was the work done badly or not at all?
Let’s use a simple example. A personal injury attorney is hired in Illinois to represent you in a motor vehicle accident. Your attorney sends you to a doctor of their choice for an examination. The doctor is not taking your case on a lien, because he or she believes your injuries are not significant. No problem. You pay for the visit with your insurance or out of pocket. Your attorney convinces you that without this MRI/CT scan, your case will be weak and that it is absolutely necessary. You pay for this as well. Now, after multiple visits to an MD, an MRI, a CT scan and numerous other treatment visits, we learn that your case is really not that strong. The doctor said you could wait 2-4 more months before surgery but you and your attorney are convinced that surgery is the only answer. After nine months of waiting, you finally get your surgery.
Because of the lack of response to treatment and your age, a second surgery is required. Your attorney blames your brother-in-law’s wife because she was the one who pushed you to have the first surgery. They settle your case poorly, receive a "fee" based on the entire amount recovered, and you can’t understand why the attorney won’t return your calls after the case is settled.
Did anyone, at any time, tell you that they were going to be covering your medical treatment? Did they explain to you how your case would be analyzed during settlement discussions? Did they make any effort to pursue other types of insurance coverage to pay your medical bills or pay for a second surgery? No problem, they say, we’ll just talk to your hospital and convince them to take less money. Your case is not nearly as valuable once you settle, that money is gone. They took a long time and fought hard for you only to have your case settle for the same amount it would have settled for if they had found out your doctor wouldn’t take a lien on your file in the first place. It is difficult for attorneys to tell their clients unpleasant truths. It is hard to say that all the money spent getting necessary medical treatments and tests has diminished the value of the case. It will be just as difficult to explain to your clients that their attorney has failed to fully protect their rights in the case.
It is important to hire an attorney who specializes in legal malpractice. Their job is to protect you and help you obtain the compensation you are entitled to under the law. They know what mistakes attorneys tend to make and how to property counsel their clients. They can help you retain your current attorneys if your case is ongoing. They can protect you and make them accountable.
The Hallmarks of Illinois Legal Malpractice Attorneys
When selecting an attorney to handle an Illinois legal malpractice case, there are numerous qualities and qualifications that are essential. First and foremost, it is essential that the attorney have significant experience specifically in the area of legal malpractice law. Many attorneys may be well versed and experienced in handling a variety of legal issues in different fields of law; however, that does not mean that they will have the experience or the knowledge to competently handle a legal malpractice case. A competent and qualified Illinois legal malpractice attorney will have experience in handling a variety of legal malpractice cases in state and federal courts throughout the country. It is also crucial that the attorney has a solid track record of successfully litigating and resolving prior legal malpractice cases. A good way to gauge the attorney’s track record is to research any reviews and testimonials found online. Common sites for reviewing attorneys for legal malpractice include Avvo, Justia, FindLaw, and Yahoo Business Listings. Searching those sites may provide a wealth of information about the attorney and the legal malpractice law firm he or she works for. Another good way to measure the attorney’s track record is to speak to individuals who have hired him or her in the past. Individuals who have used the services of a competent and qualified Illinois legal malpractice attorney will generally be happy to share their experiences and will often be willing to provide a positive review. Finding a qualified attorney to handle your legal malpractice case will ensure that your case is in good hands.
Where To Look For A Legal Malpractice Attorney
Finding the right Illinois legal malpractice attorney can be a daunting task, but there are practical steps that can be taken to effectively find a reputable attorney. One of the most common ways to locate a legal malpractice attorney is by searching online directories. Online directories provide a convenient way to search for attorneys who specialize in legal malpractice based on location and expertise.
Another effective method is to seek referrals from trusted sources. Asking for referrals from colleagues, friends or family members can be an important step in finding a qualified legal malpractice attorney. Additionally, checking professional credentials is an essential component in the decision-making process. Verifying the attorney’s qualifications, including their education, license to practice law in Illinois, and experience with similar cases, will help to ensure that you are making an informed decision.
What Occurs During A Legal Malpractice Case
The journey to resolving a legal malpractice case begins with the initial consultation. During this important meeting, the prospective client describes their case and the issues that caused them to seek out a legal malpractice attorney. The attorney will ask questions to clarify the facts and issues that will be critical to the case. The next step is usually drafting a legal malpractice complaint which lists the allegations, known as "counts," that form the basis of the claim. The counts will relate to actions and/or omissions by the defendant attorney that allegedly caused harm to the client.
After filing the complaint in the appropriate court, an answer will be served by the defendant. This document is a key part of the litigation and may include defensive and affirmative (counter) claims. Discovery ("the process of obtaining information about the facts of a case from the other party or parties") begins after the defendant has filed their answer.
Discovery typically includes written or oral interrogatories (request for factual answers to particular questions), document requests and deposition requests. Document production may include client files , files of other clients with similar cases, memos, emails, bank records and various other sources depending on the facts of the case. Additional discovery demands will also be issued to third parties who may be involved with the allegations. For example, in a legal malpractice case involving real estate, a title company may be brought in as a third party defendant because they may have been aware of a conflicting lien that the original law firm allegedly failed to recognize and to advise the former client about.
A Rule 213(f)(3) Disclosure is also required during the discovery process. This is a formal statement of witnesses who will be used in the case and "critical care" documents from the former attorney which the plaintiff intends to use to prove the elements of the case. The Illinois standards for legal malpractice state that to prevail, the plaintiff must show "the defendant attorney’s conduct did not comport with the standard of care. In addition, plaintiff must show the injury suffered was a proximate result of the alleged unprofessional conduct." Litigation will proceed until the case is resolved, either through the filing of motions for summary judgment or formal settlement.
Common Questions To A Legal Malpractice Attorney
When you meet with your new potential legal malpractice attorney, there are all-important questions to ask. The following are just a few:
- Do you have experience with legal malpractice claims, experts, complicated cases?
- Do you charge for consultation?
- Are you familiar with my specific area of law, what firm do you have in mind?
- Do I need to transfer my case to you or will you work with my former attorney?
- How is the retainer calculated?
- What if I cannot afford the retainer?
- How often will you communicate with me? And by which method?
- Do you have legal assistants/paralegals?
- Will the legal assistant/paralegal communicate with me?
- Will I have access to my files?
- Have you had success in the past for cases in this area?
- Is confidentiality of your other clients guaranteed in writing?
If you are considering pursuing a legal malpractice action because you feel that you have a case, make sure to choose an attorney that can help you.
Legal Malpractice Costs
Because legal malpractice cases are more akin to medical malpractice cases than to any other type of litigation, this blog urges prospective legal malpractice clients to be aware of the importance of expert testimony in legal malpractice litigation. In order to have a legal malpractice case, the Plaintiff must prove that the defendant attorney breached his/her duty to the plaintiff. To do this, the plaintiff is required to have an expert in the underlying area of the law testify at trial (unless the attorney admits that it was a shoddy job and cannot defend him/herself in which case the plaintiff can win via a motion for summary judgement). Thus, in order to even enter the case into the court and then continue with the case, the plaintiff is required to spend money on expert fees, pre-trial discovery costs, and attorney’s fees. In some cases, depending on the complexity of the underlying case, to get to the discovery stage it can cost in excess of $15,000 (much of which is for the expert). The Contingent Fee: In a contingency fee case, the attorney gets a percentage of the final settlement or verdict. On a legal malpractice case, the contingency fee is usually only 40% (overhead is usually determined to be included in the 40% so do not assume it is in addition to the 40%). Also , because there could be a significant outlay of money on experts, most likely it will be the client’s responsibility to pay experts billed out by the attorney. On average, the client would be expected to pay anywhere between $20,000. to $50.000.00 in experts’ fees, although it could be higher and it all depends on the case. Example: Malcolm Peterson was a named beneficiary in a trust and also had a claim against the Trustee for his fiduciary duties. Peterson hired Jerry Lawyer to represent him in the original trust case. Peterson had a strong claim against the Trustee as well as for tortious interference and breach of fiduciary duty. Peterson maintained the right to sue for those claims, but at the last minute, Lawyer failed to preserve those claims and allowed them all to become time barred. Peterson hires Attorney Malpractice Law Firm Co. to sue lawyer. At a minimum, Peterson would be required to hire an expert in Family Trusts, Trust Accountings, Estate Planning, and Taxation of Estates. Peterson would be looking at a minimum of $10,000. in expert fees. If Peterson wins, he pays back the $10,000. and retains 95% of the award. If Peterson loses he is liable for his expert fees.