201912.01
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Legal Malpractice Thoughts for 2020

                                    LEGAL MALPRACTICE THOUGHTS FOR 2020

  1. Frequency of claims paid in the range of $1 million to $5 million

Since 2011, the number of claims against lawyers which resolved by the accused lawyer’s paying the aggrieved client in the range of between $1 million and $5 million has increased by 940%.  The American Bar Association (ABA) reported in 2011 that only 49 legal malpractice cases were reported resolved with the accused lawyer’s paying the client between $1 million and $5 million. In 2015, in a rather alarming turn of events, the ABA reported an increase by 461 of legal malpractice cases resolved by the carrier’s or lawyer’s payment of between $1 million to $5 million for a total of 510 cases settled.    In 2020 the ABA will likely report an even higher number of legal malpractice cases resolving in the $1 million to $5 million range.

Statute of Limitations Issues

            Determining when a client’s legal malpractice statute of limitations has run out is one of the most difficult and challenging issues in the law.  If you think you have a claim for legal malpractice against your attorney, you must act promptly or risk losing your claim against that attorney altogether. THE FIRST THING YOU NEED TO DO is speak to a skilled lawyer experienced in legal malpractice.  

How long do I have to bring my claim against my lawyer?

The “general rule” for bringing a “negligence” claim against an attorney in Kentucky and often elsewhere is that a client has one (1) year from the date when the client knows or through the exercise of reasonable care should recognize that their lawyer has caused financial damage through his/her negligence.    

You may still have a claim:

If the lawyer continues to represent you after his or her negligence has caused you potential economic/financial loss there is an exception which operates to toll/stop the one (1) year clock.  This is known as the “continuous representation rule.” This “rule” means that while the lawyer continues to represent you after he/she has caused you potential economic loss by their negligence, the Statute of Limitations does not begin to run.  The period of limitations will run after the attorney has exhausted all efforts to remedy his/her malpractice or after he ceases to perform any further legal work for you.  However, there are exceptions and again, it is important you talk with a skilled legal malpractice attorney as soon as you suspect malpractice to make sure you understand your rights. 

          When the lawyer stops working on your legal problem:

In cases where an attorney has not officially withdrawn from a lawsuit but has stopped performing legal services, the clock will start to run at the time the lawyer stops performing legal work for the client.  Also, if the malpractice committed by the lawyer cannot be rectified by further representation, continuing representation in other legal matters may or may not stop the running of the Statute of Limitations depending on the state in which the legal malpractice occurred. 

In the context of whether the “continuous treatment” rule will apply to stop the Statute of Limitations in a doctor/patient relationship, the Kentucky Courts focus on whether the patient was relying on her doctor to correct the consequences of poor treatment.  You can expect Kentucky courts to follow this logic in legal malpractice cases.  If the lawyer’s continued representation cannot correct the problem, the Statute of limitations will begin to run when you learn, or you should have learned through reasonable care that your lawyer cannot save your case or fix the problem he or she created by his or her negligence.

Presumably the client can expect that if the if the client knows or should have known that the lawyer is not capable of correcting the error (at the time the client learns of the malpractice), the lawyer’s continued representation of client in the same matter will not toll/stop the running of the Statute of Limitations.

Could I have other claims against my attorney or against someone else?

It is important to understand that your claim against your attorney may not be based on negligence but may be based upon some other “cause of action” which may employ a five (5) or even ten (10) year statute of limitations.  ALWAYS seek immediate legal advice by a skilled practitioner of legal malpractice law.       

  • Transactional Claims Issues

Probably the most frequent legal malpractice claims concern the lawyer’s failure to properly draft and prepare legal documents, such as real estate contracts, LLC Operating Agreements, patent applications, etc. A client may not know that the particular document did not adequately protect him or her until the transaction covered by the document actually is underway.

Does my lawyer have a conflict of interest that could hurt my position?

Conflicts of interest issues comprise the majority of professional negligence cases, including legal malpractice claims in the area of transactional work performed on behalf of clients. 

Conflicts of interest arise when a lawyer’s personal interests prevent him from putting his client’s interest first or above his/her own, or likewise arise when a lawyer represents multiple parties to the same transaction or represents another person whose interests are in conflict with the client’s. 

It is CRUCIAL that you explore with your transactional lawyer the nature and extent of his/her interest in the outcome of your transactional work AND nature and extent of his/her relationship with the “other” party to your transaction or with any other client.

Automobile Wrecks/Crashes and Insurance Issues

While many clients think that any person with a law degree is capable of handling a case growing out of a car wreck, nothing could be further from the truth.  Automobile accident cases require a thorough understanding of the legal principles relating to automobile insurance policies, as well as local, state and federal highway laws. All auto accident cases are not the same.

It is important to recognize that 90+% of automobile accident cases are settled by money settlements paid by an insurance company that insures cars, trucks, semi-tractor trailers and motorcycles. 

How much the insurance company is willing to pay you as compensation for your injuries often depends on the resume of your lawyer.  In other words, insurance companies know which lawyers not only are willing to take your case to the courtroom, but also which attorneys are skilled in trying your case to a jury.  It is important for you to know how successful the attorney you choose has been in past cases.  You can be sure that before the insurance company writes the check to settle your case, its adjustors will know who they are dealing with as well as your lawyer’s past success in obtaining automobile accident jury verdicts.  Don’t accept any lawyers’ claims to success based upon jingles and slick television ads.

Your Doctor is Board Certified, but is Your Lawyer? How to Know If Your Lawyer is Qualified to Handle Your Case

The Bar Associations and the state Supreme Courts which adopt rules for the Bar Associations to follow, have created Board Certification programs to determine and recognize the expertise of lawyers who practice particular areas of law.  These programs are designed specifically to assist you as a consumer of legal services in determining if the lawyer you are considering is qualified to handle your legal issue or your potential case.  However, Kentucky has yet to adopt such a program.

Kentucky Supreme Court Rules do allow attorneys who are Board Certified by “National” certifying boards to state in advertising materials that he/she is “Board Certified as a Specialist” in certain fields, such as Legal Malpractice and Medical Malpractice. (Supreme Court of Kentucky Rule 3.130 (7.40))

What is Board Certification as a Specialist?

To achieve Bard Certification as a Specialist the attorney should have many years of experience in the handling of the cases within the particular specialty.  The lawyer must pass a written examination and the Board will conduct a thorough review of the cases he has handled in the past.  The names of Judges and the lawyers who opposed the applicant in his past trials are requested to submit opinion letters to the Board, regarding that lawyer’s skill, integrity and ethics.  Equally important, each Specialist must be recertified every five (5) years or so in order to maintain his or her Certification as a Specialist.

In all cases where there is a potential for a jury trial, such as car, truck, and semi- tractor-trailer accidents, your lawyer should first and foremost be a qualified trial lawyer.  A qualified trial lawyer is one who has extensive past trial experience presenting serious injury cases to a jury resulting in large and significant jury verdicts.  For example, I am Board Certified as a “Civil Trial Specialist” by the National Board of Trial Advocacy (NBTA).  I have tried dozens of cases to jury verdict, receiving many multi-million dollar verdicts.

In the legal field of lawyer malpractice or lawyer negligence or legal negligence, there is only one national Board accredited by the American Bar Association to certify Specialists in the field of Legal Malpractice – the American Board of Professional Liability Attorneys (ABPLA). THe ABPLA has been in existence since 1972 and has been instrumental in ensuring that persons seeking lawyers to represent them in legal malpractice claims against their former lawyers receive the highest qualified, tested and proven lawyer available for these complex cases.  The ABPLA has a certification process that requires the applicant to first establish that he or she is a genuine trial lawyer and then establish that he or she has additional specialized, trial experience in the litigation of legal malpractice cases.

I have been Board Certified as a Legal Malpractice Trial Specialist by the ABPLA since 1994.  I was “re-certified” in years 1999, 2006, 2011 and 2016. I served as the national President of the ABPLA from 2010 through 2014. I am currently a Member of the Board of Governors of the ABPLA and I am Chair of the Standards Committee, ensuring that the ABPA maintains the highest standards for granting Certification.

Always ask yourself:  Now, I know my Doctor is Board Certified, but is my lawyer?

If you think you have a legal malpractice claim against an attorney who has represented you, you must act quickly.  We recommend you call our office today to find out if you have a claim and the time limitations on your ability to bring that claim.legal map

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