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Legal Malpractice

Suing your lawyer for negligence can be a difficult process. Many lawyers are not willing to sue other lawyers. However, this is an area of law in which Indik & McNamara, P.C. has a great deal of experience.

Even good lawyers sometimes make mistakes. Often those mistakes can be corrected, but sometimes mistakes can seriously damage the client’s case. When that happens a client should investigate whether he or she has a valid legal malpractice claim against the lawyer.

Legal malpractice arises when a lawyer is negligent in the handling of a client’s case, and the client’s case is damaged thereby. To prevail in a legal malpractice case a client must prove:

  1. There was an attorney/client relationship;
  2. The attorney’s representation of the client negligently fell below the applicable standard of care;
  3. The acts or omissions of the attorney which amount to negligence caused the client’s harm; and
  4. The extent and nature of the harm.

Most legal malpractice cases require expert testimony. Additionally, New Jersey requires that an Affidavit of Merit, sworn to by an appropriately licensed and experienced professional, be provided by the plaintiff in a legal malpractice case. A firm experienced in legal malpractice litigation is very helpful when choossing the right expert to provide the Affidavit of Merit, and the expert report and testimony needed to win a legal malpractice case. Often more than one expert is needed. Proving professional negligence is not enough. The more challenging part is often proving that the malpractice caused damages.

Some examples of legal malpractice include, but are not limited to:

  • Failing to file a lawsuit within the statute of limitations
  • Missing other important deadlines in the case
  • Not properly preparing for trial
  • Not complying with orders from the court
  • Representing another client to your disadvantage
  • Lying to you about important case information
  • Not telling you about settlement offers
  • Settling your case for less than it was worth without your approval
  • Inappropriately using money belonging to you
  • Pressuring you to settle for an unreasonably inadequate settlement
  • Failing to conduct needed discovery
  • Abandoning your case unreasonably
  • Failing to file important court documents

In many malpractice cases, it becomes necessary to prove what the outcome of the case that was handled negligently would have been worth if there had been no legal malpractice. This requirement is referred to as proving the “case within the case”. Often, this requires trying the underlying case in the trial of the legal malpractice case. This is one of the reasons why legal malpractice cases can be difficult and expensive to handle.

Garcia v. Kozlov and the “Case within a Case” method

Martin K. Indik is has been awarded recognition as one of New Jersey’s “Super Lawyers” in the area of professional malpractice, including legal malpractice. He has specialized in suing lawyers for over twenty years. The New Jersey Supreme Court has endorsed him as a “Certified Civil Trial Attorney”, a distinction that only a small percentage of New Jersey lawyers attain.

Marty was the attorney that tried and argued the seminal legal malpractice case of Garcia v. Kozlov before the New Jersey Supreme Court. http://scholar.google.com/scholar_case?case=4747234971459201414&hl=en&as_sdt=6&as_vis=1&oi=scholarr

In Garcia, Marty argued that an legal malpractice plaintiff should not be limited to the case within a case procedure of proving legal malpractice at trial. While the “case within a case” method is often the most appropriate procedure, in certain circumstances it can be unreasonably expensive and difficult to proceed in that manner. The Supreme Court in Garcia agreed that in appropriate circumstances the legal malpractice plaintiff can prove the underlying case through expert testimony rather than being forced to recreate what would have actually occurred in the underlying trial if it had not be for the attorney’s negligence.

If you believe that you or someone you know has been the victim of legal malpractice, please contact our firm to discuss your case. There is no fee for the initial legal consultation and if we conclude that your case merits it, we will offer to take your case on a contingency basis. That means that if we don’t recover money for you, you don’t pay a legal fee.

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