attorney malpractice

What is the name of your state? michigan

We are involved in a real estate law suit as the defendants. We asked an attorney to represent us he said he would. He prepared an answer to the complaint and we approved it. His secretary assured us she filed it repeatedly. We ended up in default. If we lose the motion to set aside the default, is this firm liable and for how much. The suit involves multiple bogus claims and a specific performance charge as well as a tort

first you have to prove the attorney had a DUTY to file your answer, just because his secretary typed it up doesn't prove he had a duty to you. the key to this case is weather or not you had a written contract with this attorney prior to the limitations on filing of your answer. an attorney may agree to represent you but no attorney is expected to work for free or without a contract for services. if you had a written contract with this attorney or a retainer with him to represent you on such matters then i would say yes if you can't get the default set aside then you have a malpractice claim, no contarct no malpractice is my opinion. there may be a slim chance that oral contracts are valid but i wouldn't bank on it. good luck with the default.

DvG

[I AM ALWAYS LIABLE]

Originally posted by David.v.Goliath
first you have to prove the attorney had a DUTY to file your answer, just because his secretary typed it up doesn't prove he had a duty to you. the key to this case is weather or not you had a written contract with this attorney prior to the limitations on filing of your answer. an attorney may agree to represent you but no attorney is expected to work for free or without a contract for services. if you had a written contract with this attorney or a retainer with him to represent you on such matters then i would say yes if you can't get the default set aside then you have a malpractice claim, no contarct no malpractice is my opinion. there may be a slim chance that oral contracts are valid but i wouldn't bank on it. good luck with the default.

DvG

My response:

David.v.Goliath, while you're somewhat correct in some of your assertions, you're wrong on many items of importance. You're apparently looking at this matter through the eyes of a "medical malpractice" type situation, rather than the potential "Legal Malpractice" that this post is about.

First, the "duty" has already been established; i.e., the attorney would not have filed a "Motion to Set Aside Default Judgment" if there wasn't already a "duty" to do so beforehand; i.e., the attorney was already "retained" contractually to respond to the Complaint.

Second, and the reason why I think you're looking at this through the eyes of a "medical malpractice" type situation is because in a medical malpractice claim, a plaintiff must only prove negligence on the part of the doctor.

In a "Legal Malpractice" claim, however, the plaintiff's job and burden is much more difficult; i.e., it becomes TWO cases in one.

A legal malpractice claimant, such as our writer, must first prove the UNDERLYING action first. In this case, our writer would first have to prove that there was a viable "defense" in the underlying action - - despite the attorney's failure to file a timely Answer to the Plaintiff's Complaint; that is, could our defendant/writer have won?

If the UNDERLYING viable defense cannot be proved, then "game over".

However, IF the UNDERLYING viable defense can be proved by our defendant/writer, then the Legal Malpractice claimant's second prong is to prove the attorney's negligence; i.e., duty, breach of duty, CAUSATION, and damages.

It's a bit more involved, but basically, it's more involved than a medical malpractice case.

IAAL

well, we won the motion to set aside a default and the attorney even paid the other attornies fees. He apologized many times and now the case proceeds. The deal is very complicated as there are two defendants and multiple claims all bogus if you ask me. It is crap. If this drags on much longer we will end up in foreclosure and bankruptcy, why won't they just take back the deposit and go away. These people tried to take title to our home without even contacting our lender for a payoff, and wanted us to lie to our insurance company about owning the home while we rented it. We just wanted to sell the house and some acres, keeping some to build a new home on. They gave us a bogus promissory note to get well the co defendant to sign, then they even retained the note for a week and switched it. All we did was add me to the deed and stopped him from taking the title with his fraudulently obtained quit claim deed. Our mortgage is not assumable and is due on sale, all kinds of bad things could have happened if he would have succeeded. Our lawyer thinks the guy is just dumb, but we think he does it all the time and gets away with it. Well our court rules say the lawyer is stuck with us and we are stuck with him but I am so angry at this whole deal. They can cheat lie and steal and yet we have to defend ourselves as if we are frauds.

[I AM ALWAYS LIABLE]

My response:

Thanks for venting . . .

IAAL

i misunderstood her post as she stated "we" filed a motion to set aside the default, i thought that she did this on her own i was not aware that she still depened on the same attorney. yes i agree you have to prove the case within the case for legal malpractice as i have a legal malpractice claim right now against a local attorney for not submitting my medical experts at the summary judgement stage of my suit. in my state the law requires the attorney to submit a affidavit from a medical expert before the case can go to trial, he had 2 affidavits from 2 board certified neurosurgeons prior to the summary judgment and never produced them to the court. both neurosurgeons testified that i was not a canidate for the surgery that was performed on me by the defendent physician. I went to an attorney firm that is well established from 1962 and which the senior partners are Assoc. professers of law at a major law univeristy here in my area. They snapped up the case and told me i had a very good chance of winning a legal malpractice claim and in their words are very "fired up" about the case which goes to trial next month. Basically, my attorney sold me out and now he must answer for his wanton negligence.


Out for blood, i'm glad your case is back on track and i wish you all the luck

DvG

thank you and good luck to you. I hate court and lawsuits and the whole thing but I am a fan of justice. I hope I get some