HOW TO RECOGNIZE AND HANDLE LEGAL MALPRACTICE

BY DAVID GROSSACK

With the explosion of litigation in our society and the abundance of lawyers, more and more people are finding themselves involved in lawsuits. Getting involved with lawyers is not much fun. It can be extremely expensive and draining emotionally, as well.

Moreover, a lawyer who does not perform in a professional manner can seriously injure the financial and other rights of his clients. Legal malpractice is a national epidemic, as has been recognized as such by former Chief Justice Warren Burger who has been quoted as saying that 75% of all lawyers are "dishonest or incompetent." While undoubtedly an exaggeration, this remark was no doubt based on some upsetting observations.

Before you hire a lawyer, please do one thing: Ask your lawyer if he carries malpractice insurance, and to show you a copy of the policy. If he doesn't or if he is perturbed that you ask the question, don't hire him. Why?  Because if there is no insurance to cover his mistakes, you may never get justice if your lawyer makes a mistake, and the chances are not unreasonable the he (or she) will.

There are five common mistakes that lawyers make, and here is how they affect you.

1.Lawyers often forget to keep calendars up to date, and miss important deadlines for filing documents. It could mean forgetting to file pleadings in litigation, or even forgetting to appear in a court hearing. It happens more often than you would care to imagine.

2.Lawyers often forget to send important documents or copies of pleadings to clients. This can interfere with how a case is handled and its eventual outcome.

3.Lawyers can get pressured for cash and settle cases too low. Massachusetts courts now permit lawyers to be sued for settling cases too low.

4.Lawyers often do not listen to clients. Too many lawyers do not respect the client enough to listen to the client, return phone calls, and to allow the client sufficient input into the handling of the case. Guess who ends up paying in the end?

5. Poor preparation. Too many lawyers are lax when it comes to the handling of trial preparation. Failure to interview witnesses, failure to rehearse favorable witnesses before putting them on the stand, and poor investigations hamstring the lawyer at trial, or force a low settlement. Moreover, thorough legal research is often required, but not done.

A major factor which leads to this problem is that lawyers, often pressed for money, will practice outside their field. The American Bar Association recognizes 49 areas of specialty.

A lawyer cannot possibly keep up with the changes in the law in more than 2 or 3 areas. So what do you do? Make sure your lawyer specializes. Don't let a lawyer who is an expert in trusts handle a criminal defense trial unless he is really qualified. Ask your lawyer what his expertise is.

Understand what kind of relationship you will have with your lawyer before it gets going, to help prevent a malpractice situation from arising.

Have a fee agreement in writing. Tell your lawyer you want to be kept informed of all developments in the case, and receive copies of all documents and pleadings.

Let the lawyer know that returning phone calls is important, and drop notes to the lawyer to keep a paper trail to memorialize what you are trying to tell him. Naturally, keep copies of the letters and notes you send the lawyer.

If things work out badly, ask for your file. Go to the courthouse and make a copy of what the official file contains. If you notice some troubling issues, such as a case being dismissed for something your lawyer didn't do, such as appear for a motion or filing a pleading, you must locate a lawyer who is willing to sue other lawyers. There aren't a whole lot of such lawyers. Most lawyers won't do it.

Bar Associations, Yellow Pages listings and word of mouth recommendations might help, but this is an area that calls for the attention of a specialist. Further, it may be necessary to go to another city or other part of the state to locate someone willing to take on a local lawyer.In any event, do not suffer in silence. The law is with you.