Our Legal Malpractice Attorneys Can Help
Legal malpractice is term commonly used to describe negligence on the part of an attorney. Like other torts, it requires proof of a duty of care to a client, a breach of that duty causing damages to a client. Like medical malpractice cases, legal malpractice cases require proof that a lawyer acted irresponsibly, negligently, unreasonably, inappropriately, or failed to provide that level of legal representation expected to properly and adequately represent a client. The fact that a case was lost at trial does not prove or disprove negligence. Cases are won and lost on their merits, however, failure to investigate and disclose material facts, or failure to follow court rules, deadlines, or procedures may be legal malpractice.
Legal malpractice can occur in any type of legal matter including corporate and business transactions divorce cases, immigration cases, real estate transactions, tax and estate planning, drafting of contracts, patent filings and renewals, bank loan transactions, collateral and security contracts, partnership agreements, criminal cases, land use, zoning and tax appeals, forced bankruptcy, defective wills and other legal matter.
Legal malpractice law in every US state is similar in that negligence must be proved by the person or entity claiming a loss, however, each state has its own particular nuances. For example certain states require an Affidavit of Merit to be filed at the beginning of a case by a lawyer with similar expertise stating that in his or her opinion there has been a deviation from the standard of care required on the part of counsel. States may differ in the amount of damages to be awarded. For example some cases allow the claimant to collect counsel fees if successful. Punitive damages may be appropriate in some cases; however, they may be limited by that particular state’s punitive damages statute.
The selection of the venue or place to file a legal malpractice claim is critical and in many cases, jurisdiction of the case, or the legal forum, may be selected based upon the applicable law. Legal malpractice cases throughout America, especially those involving securities, bank transactions, mortgages, or investments often may be brought in Federal Courts of New Jersey or New York, despite being geographically a distant from the negligent lawyers office. Foreign bankers, foreign governments, or foreign corporations harmed by their American based lawyers can sue their counsel often in US Federal Court.
Legal Malpractice cases require the use of an expert witness. The hired expert witness will be required to study all of the underlying facts, write a report rendering his or her legal opinion as to whether or not legal malpractice has been committed, and may be required to give testimony at depositions and trial if necessary. The expert witness must prove that he or she is qualified in a particular area of law to give an opinion as to a deviation in the standard of care. This qualification may be satisfied through education, training, experience and reputation as an attorney or litigator or both. However, the selection of an expert is far more complicated than picking them solely on their knowledge of a particular area of law. The expert witness must also have the ability to explain complex legal theories and procedures in simple terms to non-lawyers serving as jurors. Their appearance and demeanor must be examined as well as their availability to participate in all aspects of a legal malpractice case. These experts may in fact be difficult to find because often the most qualified lawyers are too busy or have little or no interest in serving as an expert witness. The search for a qualified witness may include retired lawyers, law professors, retired judges and prominent members of large law firms. Because of this these expert witnesses may be expensive; however their fee for their services must still be reasonable.
If a case does go to trial over the issue of legal malpractice, the trial lawyer often must prove that the underlying case should have or could have been won but for the lawyer’s malpractice. This means that the initial case would need to be re-litigated in front of a jury with the only difference being that the verdict will be paid by the negligent lawyer instead of the original defendant. This called a “case within a case” or a “trial within a trial.” Quite often experts of all types that were not hired initially may be called to prove that the underlying case should have been won.
The selection of a lawyer to represent a client in a legal malpractice case is an important decision. The potential legal malpractice client should not look for another same or similar type of firm to investigate and litigate their legal malpractice loss. Instead, the harmed client should look to law firms that handle sophisticated and complex negligence claims. The law firms that sued the tobacco companies, pharmaceutical companies and automobile manufacturers started out and continue to be personal injury law firms because all personal injury cases are grounded in negligence. Unlike most lawyers, these same firms waste little time and resources in handling a case because they do not charge or get paid by the hour for their legal services. As a result, many of these legal malpractice lawyers should consider handling legal malpractice claims on a contingent fee basis or a blend of a contingency fee and hourly method.
Aggressive and zealous litigation is required on the part of legal malpractice attorneys who predominantly represent aggrieved plaintiffs. For that reason, lawyers that traditionally defend legal malpractice claims are not the best suited candidates to select as counsel for bringing a legal malpractice claim.
When one is damaged by their own lawyer’s mishandling of their legal matters there are several options available to them. If a lawyers conduct violates the Rules of Professional Conduct, the first option may be to file a grievance with the attorney ethics board in the state where the lawyer practices. This option may result in attorney discipline but it rarely comforts the victim for their losses caused by the lawyer’s malpractice.
Attorneys accused of legal malpractice often conceal, deny and defend against any allegation of negligence. For that reason it’s important to consider directly filing a civil lawsuit in order to be compensated for losses caused by the negligent lawyer. Bennett J. Wasserman and the Davis, Saperstein & Salomon, P.C., legal malpractice law team has the skill and background that such cases require and demand.
Ben Wasserman focuses his practice entirely on legal malpractice, billing disputes, breaches of fiduciary duty, ethics issues, legal advertising and related cases. Ben Wasserman is licensed by the State of New York, New Jersey, Pennsylvania and the US Supreme Court. He has participated in legal malpractice claims throughout the United States. Since 1985, he has been certified as a civil trial lawyer by the New Jersey Supreme Court. He also serves as Special Professor of Law at Hofstra University Law School and teaches a course in Lawyer Malpractice to advanced law students.
In 2008, New Jersey Monthly Magazine together with the Law and Politics Magazine were enjoined from published the results of a survey recognizing the top 5 percent of New Jersey as “SuperLawyers.” The magazine called upon the legal services of Ben Wasserman to help represent them in getting the New Jersey Supreme Court to reverse itself on constitutional grounds. Because of this important landmark case, The New Jersey Law Journal voted Ben Wasserman “Lawyer of the Year” for his work as co-counsel. Because of this case, The New Jersey Supreme Court to adopt amendments to its ethics rules that would allow the state’s lawyers to mention that they had been included in Super Lawyers magazine and rated by other directories and publication. The case involved persuading the state’s highest court that its own attorney advertising rules infringed on constitutionally protected commercial speech.
Additionally, Ben has served on the Malpractice Insurance and Legal Education Committees of the New Jersey State Bar Association and edited the New Jersey Law Journal’s annual review of legal malpractice cases and ethics opinions.
When representing legal malpractice victims, Bennett Wasserman draws upon his own 30 plus years of extensive experience as well as the resources of all of litigation skill and expertise of the lawyers at Davis, Saperstein and Salomon P.C. For instance, when the alleged attorney negligence involves the mishandling of commercial dispute, auto tort claim or family law issue, our Legal Malpractice Department can tap into the knowledge and experience of our firm’s attorney in those areas of law to prove the legal malpractice, establish how the negligence occurred and how it damaged the client.
Contact our New Jersey and New York Legal Malpractice Lawyers Today
Ben Wasserman and our legal malpractice team provide discrete, confidential and diligent representation to our clients and pay close attention to their business needs. We also offer innovative and flexible fee arrangements that are designed to reduce our legal malpractice clients’ financial exposure and provide a timely resolution of their claims, whether it’s through mediation, arbitration, litigation or appeal. To learn more about how we can assist you, call us today at (800) 529-2000 or use our online form.
Having its national headquarters located in Bergen County less than 10 miles outside of New York makes it convenient to litigate cases in New York City and its suburbs as well as in all New Jersey counties. Our New York Office is located minutes from Wall Street and new Freedom Tower. International clients will find it convenient to communicate via videoconference, Skype, if necessary and may fly into Newark Liberty Airport which is located only 20 minutes from Teaneck.
