Finding a Good Legal Malpractice Lawyer in Virginia: Your Complete Guide
What Legal Malpractice is in Virginia
Legal malpractice is a breach of duty by an attorney that results in damages to a client. In order to prove legal malpractice, some damages must result from the breach by the attorney. Stated another way, a client cannot sue their attorney for claiming they had poor service merely because the outcome of a case was not what they desired. While a result may be disappointing, if the attorney’s actions were not otherwise negligent and the case could not have reached a better result, then damages were not caused by the attorney.
Virginia is one of the few states in the country that deviates from the majority standard when it comes to proving damages in a legal malpractice claim. Virginia courts have adopted the "case-within-the-case" doctrine . This requires plaintiffs in legal malpractice cases to prove that they would have likely obtained a better result in the underlying action if the attorney had not committed the malpractice. In some cases, this can be a difficult thing to show. For instance, if the underlying issue is a breach of contract, the plaintiff must show that they would have had a better result at the breach of contract lawsuit phase if the lawyer had not committed the malpractice. If the attorney litigated the underlying case competently and was then overruled by the judge, the case-within-the-case doctrine would not apply, and the plaintiff would not be able to show damages in their legal malpractice case.
How to Decide When to Call a Legal Malpractice Lawyer
There are several warning signs that suggest you may need to hire a legal malpractice attorney. Common examples of negligence include when a lawyer missed the statute of limitations, mishandled a legal matter, failed to file important documents, departed from the original agreement, made errors due to drugs or alcohol, or breached a fiduciary duty. Essentially, if you believe your legal counsel mishandled your case, you should consider hiring a legal malpractice attorney. Common situations that could be an indication of malpractice include if your attorney didn’t interview witnesses, failed to file significant pleadings, or incurred excessive fees. If your legal counsel is not communicating with you and is ignoring your phone calls or emails, it may be time to contact an attorney experienced in legal malpractice.
Traits of the Best Legal Malpractice Lawyers
When it comes to selecting a legal malpractice attorney in Virginia, there are several key qualities and qualifications to consider. Experience is undoubtedly one of the most important factors. An attorney with a strong background in legal malpractice cases will have a deep understanding of the intricacies of such claims, as well as the ability to navigate the complexities of the legal system. Another important quality to look for is reputation. An attorney with a strong reputation in the community will be better equipped to handle your case effectively. Client testimonials and references can also provide insight into an attorney’s success in previous cases, as well as their overall level of client satisfaction. Finally, success rates in similar cases can be a good indicator of an attorney’s ability to achieve a favorable outcome for clients. By keeping these factors in mind when selecting a legal malpractice attorney in Virginia, you can increase your chances of finding the right representation for your case.
When to File a Legal Malpractice Issue
When pursuing a legal malpractice claim in Virginia, you first need to be clear about whether a particular action constitutes malpractice or if you’re simply unsatisfied with your previous legal representation. Keep in mind that not every mistake made under the guidance of an attorney is grounds for legal malpractice. Assuming you have a legitimate legal malpractice case and have already consulted with a Virginia legal malpractice lawyer, here are the specific steps you should take before, during and after the pursuit of your claim. First, understand that legal malpractice claims have an established time frame. Virginia, like other states, has a statute of limitations on how long you have to make a claim after legal malpractice is detected. You have two years after the act was committed to file your legal malpractice claim. To pursue legal malpractice in a court of law, you must be able to show that your attorney "…failed to exercise the degree of skill, prudence and diligence that lawyers of ordinary skill possess and exercise," as stated by the legal malpractice litigation section of the Virginia lawyer’s handbook. There are a number of important steps to take to pursue a legal malpractice claim. First of all, you should investigate to see if there is a statute of limitation on the legal malpractice claim you plan to file. Next, you should consult with an experienced legal malpractice attorney to determine whether you have a case or not. Most likely, your savviest course of action will be to send a letter to the attorney who represented you, telling the attorney you are unhappy with their work and that you are seeking recourse in the way of legal malpractice litigation. Be aware, however, that legal malpractice cases almost never make it out of the court house when pursued as pro se legal malpractice cases.
Expenses and Fees: Legal Malpractice Representation
When it comes to legal malpractice representation, it is important to understand and be prepared for the costs associated with your case. Let’s take a closer look at some common fee structures and what you might expect to pay for a legal malpractice attorney in Virginia.
Contingency Fee
In some cases, a legal malpractice attorney will offer representation on a contingency fee basis. This means that as a client, you only pay for the services rendered if you win the case. The amount an attorney may charge you depends on the particular case and the amount of monetary damages you may receive. While most legal malpractice cases are never taken on a contingency fee basis, the structure is used in certain personal injury, medical malpractice, or wrongful death cases in which significant monetary damages may be awarded.
Retainer
As an upfront fee, a legal malpractice attorney may require that you pay a retainer at the beginning of a case. A retainer fee may be used to the cost of investigating your potential legal malpractice claim, and is generally less than the total cost of full representation. A retainer may also be billed against any case expenses that arise during the prosecution of your case . In many cases, retainer fees are held in a special account and drawn from when any services are provided.
Flat Fee
While most legal malpractice attorneys offer representation at a specified hourly rate, some may offer a flat fee for certain services. A flat fee is billed as a set amount, based on the specific services provided to the respective client. An example of a flat fee would be for a preliminary consultation with a legal malpractice attorney, at which time you are given guidance on whether or not you have grounds for a case. Depending on the attorney and the costs for other services, flat fee rates can be an excellent way of getting the legal guidance you need without a full representation commitment.
Hourly Rates
This is the most common way attorneys, of all specialties, charge clients for their services. Under an hourly rate plan, you are charged a specific amount per hour for services rendered. A preliminary consultation and any investigation conducted by the legal malpractice attorney is usually billed at the same hourly rate charged for the litigation of your case. It is important to keep in mind that each attorney may charge varying hourly rates, and that their hourly rate does not always designate the quality of service they provide.
Legal Malpractice in the States
Legal malpractice law in Virginia can differ from legal malpractice law in neighboring states. In the commonwealth of Virginia legal malpractice is governed by a state statute. In North Carolina the law is derived from a lifetime of judicial decisions, and in South Carolina, it may come from either. The distinction is important. Virginia has specific requirements a Plaintiff must meet to prove their case. North Carolina does not have a statutory determination of a duty of care and simply follows the "reasonable prudent attorney under the circumstances" rule. South Carolina, since the early 1900’s, has a rule that is a combination of both approaches. Cases based on the notion that an attorney must follow the client’s instructions, rather than exercise independent judgment contrary to the instruction, are common. It is likely that in every state in the United States the basic concept of "negligent attorney conduct" is valid. That is; if a lawyer fails to act in a zealously protective fashion, under the circumstances; and the client suffers a potentially provable loss, there may be a case. But that is where the similarities end. Each state "flavors" that basic element of legal malpractice law, in their own way, as addenda to judicial resolutions or by legislative enactment.
Virginia Case Studies in Legal Malpractice
To illustrate further the potential for legal malpractice, here are some real-life and hypothetical cases that demonstrate how legal malpractice plays out in Virginia.
Case Study 1: Late Filing of Appeal
In Johnson v. Satterwhite, the plaintiff filed for divorce and had a hearing in March 2011. After that hearing, the court ordered Mr. Johnson to pay child support, but the amount and duration were undetermined. In June 2012, the plaintiff learned that the child support was for life or until the child graduated from high school. Mrs. Johnson attempted to file an appeal within 30 days of the judgment, but it was untimely and denied by the court. Here, Mrs. Johnson had paid her lawyer a "retainer that was unnecessary". This was because the case is very clear: if you are unhappy with your representation in a legal matter, seek a legal opinion from another attorney about whether or not you have a viable case .
Case Study 2: Children’s Trust Fund Misappropriation
In Hays Developer Group v. Hays, the defendant law firm negligently drafted the complaint and failed to suit the members of an association. After winning a $1.6 million jury award which was later overturned following a judicial review led by a trial judge, the plaintiff sought damages of $1.65 million from its law firm for legal malpractice. This case highlights the importance of filing papers on time and accurately to avoid exposing your clients to substantial damages.
Case Study 3: Drafting Errors
In Chama Builders v. Lili Kao, plaintiff claimed that it was "rushed into signing" a contract by defendant, who provided insufficient preparation beforehand, left out relevant provisions, and then refused revisions. The plaintiff lost a claim for $88,000 due to the defendant’s negligence, with damages totalling well over $200,000. Here, we see again the importance of honest and thorough representation.