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Apr 9, 2010

In every trial, there is a winner and a loser. Great attorneys lose trials. There is, however, a distinct difference between a good attorney giving it a noble effort and still losing versus an attorney losing a client's case due to neglect or incompetence. At Anderson Hemmat, we have no problem calling it what it is-legal malpractice. We are not members of a "boys club" and have no worries about how we might be viewed by those colleagues who would turn a blind-eye to gross legal error. We prosecute lawyers with the same level of professionalism and skill as we do any other negligent party.

When we are called by people claiming legal malpractice, we must determine whether the attorney's professional conduct fell below acceptable standards of care. That is much different than two attorneys merely having a different strategy or differing reasonable legal opinions. Basically, we look at whether the attorney took a winnable case and fumbled so badly that few, if any, attorneys could find an excuse for that level of error. If it sounds like it is hard to pin a malpractice action on an attorney, well-it is. In order to win a malpractice action, you have to prove basically that the case would have been won if the lawyer had not made a mistake. That requirement is called "proving a case within a case." You must prove BOTH that the lawyer breached the standard of care AND that your underlying case was a winner.

Some examples of classic legal malpractice may be the following: a legal action being dismissed because a lawyer failed to file suit within the time prescribed by a statute of limitations, settling a case without proper consideration of the true value of the loss, or, of course, general incompetence.

Over the years, we have represented several clients with very significant legal malpractice claims. One claim in particular involved a brain-injured lady who was pressured by her attorneys to settle for much less than the case was worth. What made this case so clearly malpractice was that this lady was profoundly brain-injured and lacked the mental capacity to make a rational decision. When we took that case to trial, the jury was outraged at the negligent attorneys and expressed their anger with their jury verdict.

We have also represented clients whose cases were fumbled by attorneys unaware of the time-sensitive governmental notice that must be filed when a client is injured as the result of the governmental entity or employee. Generally, the negligence of the attorney in these cases is quite obvious. However, when these lawyers are defended for their negligence, it is always amazing to see how many different ways they try to rationalize their lawyer-client's conduct. Blaming the victim is usually step one, suggesting that the case was a loser despite the attorney's negligence is usually step two.

CONCLUSION:
At Anderson Hemmat, we view prosecuting legal malpractice as important. Attorneys have an obligation to act with due regard for the people they represent. When an attorney breaches his obligation, not only might a client lose a case, but it is also a breach of the public trust. Our role in these cases is to defend and restore the public confidence.


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