How To Defend Yourself in a Legal Malpractice Lawsuit
Malpractice claims can arise when a former client is not happy with your service.Malpractice liability can be avoided if you do everything you can to provide flawless services.If you are sued for legal malpractice, you should respond quickly and prepare for a trial.If your case goes all the way to trial, be sure to present the best case you can.
Step 1: Look at the summons and complaint.
The lawsuit begins when the person files a complaint and summons with the court.The complaint tells you what you are being sued for, why the court is the right place to go, and what the judge should do.The summons tells you that you need to respond to the lawsuit within a certain time period.The statute of limitations in a legal malpractice suit can be used to argue that you owe the person a duty of professional care.
Step 2: Talk to your malpractice insurance provider.
Malpractice insurance can have a huge impact on how your case will be resolved.If you don't have insurance, you may not have the funds to pay the damages.Two things usually happen if you have malpractice insurance.Your insurance company could defend you against the claims.An attorney will be hired by the insurance company if this happens.If you are found liable, the insurance company will set aside funds.
Step 3: Hire an attorney.
If your insurance company does not provide an attorney for you, you should hire one before drafting an answer.You should not defend your own malpractice suit if you are a current practicing attorney.You want to hire an expert in the field to help with your defense.Reach out to the lawyer or firm if you know of one.Some firms have professional liability teams.You can always contact the lawyer referral service of your state bar association if you don't know any attorneys.After you answer a series of questions about your issue, the state bar association will put you in touch with a few qualified lawyers in your area.
Step 4: Evaluate the possible defenses.
A response to a lawsuit gives you the chance to deny any claims you don't find to be true and to assert any defenses or counterclaims you have.Before you draft your answer, you should research possible defenses to legal malpractice claims and determine if any of them apply to you.contributory negligent might be a possible defense.When your client's actions help cause the damage you are alleged to have caused, there is carelessness.When your client fails to return important documents in a timely manner, contributoryNegligence may exist.It is possible that your client fails to show up for court hearings.There is a possibility of a second defense.If your client's malpractice claim rests on the idea that you provided advice that led them to commit illegal or immoral acts, you should always raise this defense.The law should not allow a person who participates in illegal or immoral acts to get relief from the harm they suffer when they are caught, according to this doctrine.You might be able to use the "actual innocence" defense if your client was convicted of a crime.If you were negligent, the outcome of the case would have been different.In some states, the courts require a person to prove that they were innocent of the initial criminal charges in order to win a legal malpractice case.You may have a defense to the lawsuit if the person can't prove their innocence.
Step 5: You should draft your answer.
You should always respond to a lawsuit by drafting an answer if you don't think the person can prove their case against you.An answer is a statement of your defense.You can either admit or deny the claims made in the complaint.You can raise any defenses that you feel are relevant after that.If you don't raise some defenses in your response, you will be deemed to have waived them.You will not be able to use that defense during trial if you forget to raise it.
Step 6: You can make cross-complaints.
You can also make a cross-complaint against the other person.A cross-complaint is similar to a lawsuit you file against the other person.
Step 7: You should file your papers.
Your answer and any other responsive pleadings must be filed with the court within a certain time period after you received a copy of the complaint.You have 30 days to respond in most states.You will have to pay a fee when you file your papers.You can ask the court for a waiver if you can't afford the fee.
Step 8: serve the person who brought the case.
You will have to serve the person with a copy of your answer either before or after you file your response.If you have someone over the age of 18 who is not related to the case, you can serve it.The server can either deliver the copies personally or send them in the mail.Once service is complete, the server will fill out a proof of service form that you will file with the court.
Step 9: Take part in discovering.
Discovery is the first stage of litigation.You will have the chance to collect and exchange information with the other party.You will be able to interview witnesses, gather facts, find out what the other side is going to say, and assess the strength of your case.Informal discovery can include interviewing witnesses, gathering publicly available documents, and taking photos.Depositions are in-person interviews.The answers given in depositions can be used in court.Interrogatories are questions that must be answered under oath.You can request documents that are not publicly available.Emails, text messages, and internal memos might be included.A request for admission is a written question that requires a person to admit to a fact or a document.
Step 10: There is a motion for summary judgment.
You should file a motion for summary judgment after the discovery is over.A summary judgment motion asks the court to rule in your favor.You need to show that there is no genuine issue of material fact and that you are entitled to judgment as a matter of law to be successful.You will have to convince the court that it would be impossible for them to win given the facts of the case.Affidavits and evidence can be submitted to back up your claims.The lawsuit will try to convince the court that there are facts in dispute that need to be argued at trial.
Step 11: You should try to settle your case.
If the case has not been resolved, you might want to consider settlement discussions with the other party.The case will be discussed with counsel and ways to resolve it during informal negotiations.Alternative dispute resolution processes include mediation, which involves having a neutral third party sit down with both parties to discuss common ground and areas of agreement.The third party is only there to help facilitate the conversation and not to take sides.It involves having a third party act as a judge.He or she will listen to evidence from both parties and draft an opinion.
Step 12: Attend the final conference.
If a settlement can't be reached, you and the other party will have a final hearing.The judge will be able to ask questions about the trial at the hearing.The judge will want to know how long the trial will last.You should bring everything with you to the hearing so that the judge can read it.A judge will not allow anything to be discussed at trial that wasn't already brought up at this conference.
Step 13: Give an opening statement.
The opening statement will be made to the court.The road map of how things will proceed should be included in the opening statement.You should keep your remarks short and sweet.You have an opportunity to say the same things as the person who made the opening remarks.The courts will allow you to hold off on making your opening statement until you can present your case.
Step 14: The witnesses should be cross-examined.
The person will present their case first.When the witnesses are called to testify, you can cross-examine them.You will try to undermine the witness's testimony by showing it was biased or untruthful.
Step 15: You should present your case.
You will be able to present your case when the lawsuit is over.You will present physical evidence when you call witnesses.All of your efforts should be used to prove a defense to liability or to show the court that there was no proof of legal malpractice.
Step 16: Your closing argument needs to be delivered.
The two of you will have an opportunity to make a closing argument after the case has been presented.You will follow the first person to go.Your closing argument needs to tie the whole trial together, reference important pieces of evidence, and give a final synopsis of why you shouldn't be held liable.This is the last chance the court will have to hear your side of the story.
Step 17: Wait for the verdict.
The court will make a decision after the trial is over.The jury will deliberate until they reach a decision.The judge will make a decision if you had a bench trial.Judgment will be entered in your favor and you won't have to pay any damages if you win.
Step 18: In writing, confirm everything.
To avoid potential malpractice, stay out of court.There are some things you can do to decrease your chances of being sued.Keeping everything in writing is a must if you want to avoid malpractice.If your services are ever called into question, this gives you a paper trail to use.Fee arrangements, consent forms, and lawyer client correspondence are some of the things that should be in writing.
Step 19: You should be honest with your clients.
Malpractice lawsuits arise when a client is unhappy with their lawyer.If you treat your client with respect, you can avoid this frustration.You should never promise a specific outcome, never ignore your client, and never prejudice your clients.It will allow you to manage the client's expectations if you can be open and honest with them.
Step 20: You should keep a detailed log of the work you do.
Fees are a common reason for clients to take their lawyers to court.If you don't have a fee arrangement in writing, your client might think you charged them more than you should.In addition to the bills you send your clients, you should also keep a log of all the work you do for them.All of your time is accounted for if you are ever questioned.