Attorneys are officers of the court. Before they can practice law in their state, they take an oath to always act in their clients' interest, to the best of their abilities. When lawyers don't perform their duties as expected, they may be guilty of legal malpractice. If you suspect your attorney has misrepresented you, or has performed incompetently, you may have grounds to file a lawsuit.
Make Sure You Have a Case
In order to win a legal malpractice suit, you have to show that the attorney's behavior fell short of that standard. You must be able to show that the attorney either failed to uphold her part of your contract, breached her fiduciary duty or was negligent. Beyond that, you mush show that you were harmed by the attorney's action or inaction. If you can show this to be the case, you may have grounds for a lawsuit.
Make Sure You can Still Sue
Most states set a time limit, or "statue of limitations," which sets a limit within which you must file your lawsuit. This limit varies by state. Florida's statute specifies two years, for example, while New York allows up to six years for contract actions. Some may be as short as one year. To complicate things further, states differ in how they define the start of that period.
The end result is the same, in any state: If you wait too long, you will not be able to proceed with your case.
Making Your Complaint
Contact the clerk of court in the county in which the malpractice occurred. The clerk's office will have the appropriate forms you will need to bring the action. You may be able to find the forms online by visiting you clerk's website.
At this point, you may want to consider hiring an attorney who specializes in legal malpractice suits. They will be able to file the paperwork on your behalf and give you advice about your case. Once the paperwork is in order, the clerk will issue a summons.
Serving the Attorney
The next step consists of serving a summons to the lawyer, which must be delivered in person. A summons provides notice to the defendant of a lawsuit that there is an action pending against him. The summons will compel the defendant, in this case the attorney you are suing, to answer the complaint filed against him.
Once the summons has been served, the attorney will have an opportunity to answer the complaint. This will usually include filing a motion to dismiss the case. This is a common practice and, if you have evaluated your case thoroughly and have grounds for a suit, will likely be denied.
Negotiate, or Try the Case
At this point, the options are to go to trial or negotiate a settlement. If you haven't done so by this point, it is advisable to hire an attorney to represent you. If the lawyer you're suing is willing to go to trial, you will almost certainly need professional representation in the court.
It is always a good idea to consult with an attorney if you plan on taking any legal action.
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