Legal Malpractice

In its simplest terms, legal malpractice is when your lawyer makes a mistake while representing you, and you are harmed as a result. It can't, however, be a mistake in judgment. It must be a mistake that a reasonable attorney would not have made under the same or similar circumstances, such as missing the statute of limitations deadline.

To prove legal malpractice, your legal malpractice attorney must prove all of the following by a preponderance (more than 50%) of the evidence:

• An attorney-client relationship;
• Negligence in the representation (i.e., a mistake);
• That the negligence caused a injury; and
• The fact and extent of the injury alleged (i.e., damages).

While that sounds simple, it isn't. You need skilled and experienced legal malpractice attorneys to prove that legal malpractice occurred. Michigan's law governing lawyers is extremely complex with many nuances. For example, not all attorney-client relationships have a clear beginning, middle and end. It can be difficult to determine whether an attorney-client relationship exists. "Negligence" does not extend to strategic decisions or attorney judgments. When is the failure to call a witness malpractice, and when is it a strategic decision? More importantly, how do you prove it was not strategy? To prove proximate causation, if you lost your case, you need to prove "the case within the case." In other words, you need to prove that but-for the attorney's negligence, you would have won your case. Sometimes, the proximate causation standard is lower, such as when a settlement position was significantly compromised. You also need to prove you were injured.

The law in this area clearly favors attorneys. You need no-nonsense attorneys on your side. Hoffer & Sheremet legal malpractice lawyers are trial attorneys and we know legal malpractice law inside and out. Our skill is well-respected in the legal community. For that reason, we are many times able to encourage your former attorney to make things right without litigation.

Many times, an attorney commits malpractice if he or she misses an important deadline.  A deadline is "important" in this context if something bad happened to you because of the attorney's negligence.  For example, in Michigan, courts issue "scheduling orders" that have important deadlines like witness disclosures. If your former attorney missed the deadline to disclose your expert witness, and as a result the judge dismissed your case, your attorney breached the standard of care.  (To win a legal malpractice case, though, we also need to prove that you would have won the case if your attorney had named the expert.)

Usually we can prove that not filing within the limitations period is attorney negligence. The two big fights we have on this type of claim is proving that there was an attorney-client relationship that required the claim to be filed. Sometimes this is easy to prove, such as when the attorney has written letters or emails indicating he or she would file a case. But other times, the attorney argues that he or she never intended to file the claim because it lacked merit, and that he or she ended the attorney-client relationship before the limitations period expired. The other big fight is proving the case-within-a-case - i.e., showing you would have won if the case had been filed.

The Michigan Rules of Professional Conduct require an attorney to "keep a client reasonably informed about the status of a matter and comply with reasonable requests for information." MRPC 1.4(a). An attorney failing to keep his client informed does not necessarily mean that he or she is committing malpractice. It could be a red flag, though. 

Sometimes - it depends. There are certain decisions that are lawyer decisions to make. That includes what discovery to conduct and what witnesses to call at trial. Your attorney might have a good reason for not deposing a certain witness. Motive matters. If your lawyer is not conducting certain discovery because he or she really feels like that is what is best for your case, then the decision is protected by the "attorney-judgment rule." 

Our philosophy at Hoffer & Sheremet is to keep our clients fully informed. So if we decide not to depose a certain individual, we explain our thought process and strategy to our client. If your attorney hasn't, you are well within your rights to ask.

The good news is that there is no mandatory waiting period before you sue, unlike some professional negligence claims like medical malpractice. But litigation is litigation - it takes time. The goal in Michigan is to have all litigation cases wrapped up in under two years, with eighteen months being about average, and twelve months being the "gold standard." We've noticed recently that some counties, such as Grand Traverse, are making a concerted effort to keep cases moving.

If you have been the victim of legal malpractice, are located in Michigan, and are looking for a legal malpractice attorney near you, we’d love to talk to you! We try to keep an attorney in the office at all times during business hours. You can reach us at 616.278.0888. You can also complete our free consultation form or email us. Sometimes we can tell you over the phone whether you have a case that could potentially move forward.

After we talk, if we think you might have a case, we will review all of the records you have from the former attorney's representation. If necessary, we will have an expert in that field of law review the case and see if a mistake was made. Then we submit a letter to your former attorney to see if they want to negotiate a settlement. If not, we sue the attorney in court.