Legal Malpractice FAQs
Q. WILL MY ATTORNEY HAVE INSURANCE TO COVER MY CLAIMS?
A. Not always. Probably 80% of attorneys in private practice in Arizona are covered by insurance, but it is not required by the State Bar. Coverage amounts are frequently $1,000,000 or higher, but The Entrekin Law Firm has handled cases where coverage was as low as $250,000. Prior to proceeding with a claim, The Entrekin Law Firm will determine whether a potential defendant attorney has insurance.
Recently, The Entrekin Law Firm received a referral where a 48 year old client was severely injured and unable to work for the rest of his life, when he had previously been earning $130,000 per year. His attorney made serious errors and got the case dismissed. We were unable to take the case, because the attorney had no insurance and no assets and was in rehabilitation. This mirrored a case we had many years ago where an attorney cost his client a $160,000 recovery and because of the attorney’s misconduct, the client was hit with a $450,000 judgment. Once again, the attorney had no insurance, no assets and was in rehabilitation.
Q. HOW LONG DO I HAVE TO FILE?
A. In most cases, two years from when you discovered or should have discovered the malpractice through the exercise of reasonable diligence. If the malpractice arose as part of a lawsuit, the statute of limitation will generally start to run when the lawsuit is terminated. In that circumstance, a victim is not required to appeal in order to reverse the attorney’s errors, but failure to appeal can give a defendant a defense, although generally not a very effective one.
NEVER SIT ON YOUR RIGHTS, ALWAYS INQUIRE AS SOON AS POSSIBLE AS TO WHETHER YOU HAVE CASE. Many Plaintiffs will decide that because they only “discovered” the legal malpractice at a particular time, they have two years from that time to file. They are often shocked when courts decide that they either “discovered” or should have discovered the legal malpractice much earlier and hold that their claim for legal malpractice is time barred.
Q. HOW DO YOU GET PAID?
A. We take cases on both a contingency fee basis and on an hourly basis. Which arrangement we go with will depend on the facts and circumstances of each case.
Some clients are pursuing losses well into the seven figures and have plenty of money, so they prefer to pay hourly, rather than give up a significant percentage of what will be a very large recovery as the contingency fee. Many clients cannot pay hourly and for them, it is a contingency fee or nothing. In order for The Entrekin Law Firm to take a case on a contingency fee, the financial damages have to be very large.
Q. CAN I RECOVER MONEY FOR EMOTIONAL DAMAGES?
A. Generally no. There are rare exceptions, but most lawsuits against attorneys are limited to financial damages caused.
A small line of cases have made provision for emotional damages in legal malpractice cases when an attorney’s error causes a parent to give up an adopted child and there is some language in other cases that suggests emotional damages may be available in very limited circumstances, but generally, legal malpractice damages are measured in financial losses.
Q. HOW LONG DOES A LEGAL MALPRACTICE LAWSUIT USUALLY TAKE?
A. The answer to this question varies greatly in light of the facts underlying each suit. That said, most legal malpractice lawsuits brought by The Entrekin Law Firm are resolved in the 14-22 month range.
Usually, a few months are spent researching the facts and obtaining information, hiring an expert or experts, drafting the Complaint and getting it approved. From filing, the case tends to run between a year and a year and a half, although large cases can take longer.
Q. WHAT ARE THE CASES WITH THE BEST CHANCE OF SUCCESS?
A. Cases involving large money damages in the areas of business, real estate and personal injury tend to do well. It helps if the attorney’s error is one that can be explained in clear and simple language for a jury. It helps even more if it is clear to a layman that the financial damages would not have happened without the error, the financial damages are very large, the party bringing suit is sympathetic and did not contribute to the error themselves and the party bringing suit has inquired promptly into the possibility of a legal malpractice suit.
Bankruptcy cases, criminal cases and family law cases are generally less successful, although family law cases with financial damages in excess of $450,000 have done well.