Is It Malpractice? Or Do You Just Need a Different Attorney?

gavel-court-judge-legalWhen you hire an attorney to handle your personal injury case, you rightfully assume that he or she will be on your side and do everything possible to ensure a positive outcome. After all, you are paying them, and they wouldn’t have taken the case if they didn’t think that it had some merit and weren’t willing to put in the work required to get you the compensation that you’re entitled to receive.

Unfortunately, though, this isn’t always the case. While the typical lawyer is diligent and will work hard on behalf of their clients, there are those attorneys who don’t provide the best service. Whether due to an overwhelming case load, a lack of experience with cases like yours, or the simple fact that they are just not a very good lawyer, the outcome is the same: You are disappointed and frustrated and perhaps even suffering financial stress.

In some cases, your experience with an attorney goes beyond a simple lack of diligence and lands squarely in malpractice territory. Regardless of the cause, you can — and should — change attorneys when you aren’t getting the attention you need, and maybe even take your dissatisfaction with your representation to the next level.

What Constitutes Malpractice

When you hire a personal injury attorney in San Antonio, you have a right to certain expectations. You can expect that your attorney will return your phone calls in a timely manner, meet important deadlines for your case, and inform you of all of the important details in your case, including being honest about the potential outcomes of the case.

Different attorneys handle these responsibilities in different ways, and that is often where the trouble starts. Because you trust your case to an attorney — and potentially a great deal of money — it’s natural to want to be your attorney’s first priority. That can’t always be the case, but when does a lack of attention veer into malpractice?

That fact is, it’s typically very difficult to successfully sue an attorney for malpractice. Not only do you need to find another attorney who will be willing to take on the case and sue a peer (which they are often reluctant to do) but most attorneys will only take on malpractice suits that are very clear cases of a lawyer failing to do his or her job. This usually entails meeting several stringent contract-negotiationscriteria:

  1. There needs to be a clear violation of the standard duty to care. Not returning a phone call (or even a few phone calls) isn’t malpractice, unless failure to respond leads to a missed deadline or other consequences that impact the outcome of your case.
  2. The case must have had significant value. Often, plaintiffs will want to file a malpractice suit because they got less in a personal injury case than they were expecting, or less than the attorney expected that they could get. However, in order for an attorney to be willing to bring a malpractice case against another attorney, the difference between potential damages and actual damages must be significant.
  3. You must be able to prove that the attorney caused the damages. Going back to the previous example, not only must you be willing to prove that the attorney’s negligence (which is an entirely different standard) is directly responsible for your reduced compensation. For example, if you believe that you could have received more if your attorney did not miss a key deadline, you may have a case.
  4. The case must be over. Because other factors can influence the outcome of the case — poor rulings from judges, witness tampering, etc. — you need to exhaust all of your options before you can file a malpractice suit.

In short, you cannot file for malpractice until you have already sustained significant losses — and even then, you cannot sue just because you don’t like the outcome of the case. That being said, you do not have to be stuck with a dud of an attorney.

Changing Lawyers Mid-Case

What many plaintiffs do not realize is that you can fire your attorney before your case goes to court, and hire a new attorney — and this will not cost you any more money. Typically, when you fire one firm and hire a different one, any fees will be split between the two law firms based on the amount of work they did for you, under the principle of quantum meruit.

Be forewarned, though, that it may be difficult to find a second attorney willing to take on your case if the fee must be split. In many cases, though, an attorney who has not put much work into your case is not going to be able to take a substantial fee, and your new attorney may not have trouble with the split. The bottom line is that you are entitled to fair representation, and if you have lost confidence in your attorney, or you can’t get the service you need, it may be time to take action.

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