If your attorney has failed you, our experienced attorneys can help you determine if you have a legal malpractice case. We know the law surrounding legal malpractice and can help you decide if you should pursue your claim. Here are the basics of a legal malpractice claim:
A Plaintiff bringing a lawsuit for legal malpractice must prove distinct elements, or necessary parts of their lawsuit. In Colorado, these elements are:
Each of these elements must be present in order to prevail in a legal malpractice case against your former attorney.
The statute of limitations for a legal malpractice case in Colorado is 2 years. This means that a client must file a lawsuit within two years of the date they knew or reasonably should have known of the attorney’s malpractice. If the lawsuit is not filed within that time, the legal malpractice suit cannot be filed.
In order to prevail on a legal malpractice case, a former client (now the Plaintiff) must prove that they would have been successful in the “underlying case,” which is the case that the defendant attorney originally represented them. This can be difficult, because often, the court will require the issues involved in the underlying case to be tried in addition to the issues related to the attorney’s malpractice. Often, proof has been lost or mitigated through passage of time, and witnesses may no longer be available. It is important to ring a malpractice case as soon as you are aware of the attorney’s malpractice in order to preserve the “case within a case.”
In addition to proving a case within a case, the Colorado Supreme Court has held that in money damages cases, a plaintiff in a legal malpractice case must also prove that they could have collected money damages in the underlying case.
Among the many defenses that a defendant attorney may raise in a legal malpractice case is what is known as the “judgement rule.” Essentially, this means that if a lawyer was using their best judgment to make a decision that ultimately negatively affected your case, that they might be entitled to dismissal of the case. Like all professionals, attorneys make strategic judgment calls, and the Colorado Supreme Court has determined that former clients cannot sue lawyers when their good-faith judgement calls turn out to be wrong. Basically this means that you cannot sue an attorney for making the wrong strategic decision. You can only sue for conduct that falls below minimum professional standards.
In Colorado all professional malpractice lawsuits require the Plaintiff to submit what is called a Certificate of Review at or near the time of filing the lawsuit. A Certificate of Review is a statement that an expert with knowledge of the practices at issue has reviewed the claim and can verify that the lawsuit is not frivolous and does not lack merit. Unless this certificate is timely filed, the lawsuit will be dismissed.
Additionally, it is almost always necessary to retain an expert, usually another attorney, to act as an expert in the malpractice case. The attorneys defending the malpractice case will always hire an expert who will write reports and testify that the defendant attorney did not commit malpractice. Unless the Plaintiff can counter this expert with one of their own, they are at a serious disadvantage with the jury, and may even lose the case before it gets to a jury if a Motion for Summary Judgment is filed and they cannot show the court that they can provide expert testimony that malpractice has occurred.
A successful plaintiff in a legal malpractice case can recover damages related to the underlying case, as well as damages related to the actual representation by the defendant attorney. SO, in addition to recovering the damages from the “case within a case” a plaintiff can recover the attorneys fees paid to the defendant attorney, as well as fees paid to attorneys to attempt to fix the defendant attorney’s mistakes. In cases where the malpractice is egregious or attended by a breach of fiduciary duty, a plaintiff may recover “punitive” or “exemplary” damages in addition to economic damages.