legal malpractice in south carolina
Lawyers are not above the law. When a client is damaged by their
attorney's mistake or conduct, the attorney may be liable for "legal
malpractice." At the Futeral Law Firm, we assist clients who have been
damaged by their lawyer's mistake or conduct.
What is legal malpractice?
Attorneys have serious ethical and legal obligations to their clients. The
attorney-client relationship usually establishes a "fiduciary duty." This is the
highest duty the law imposes. It requires the attorney to exercise the "utmost
care," and treat the interests of the client as if they were the attorney's own
interests. Lawyers in South Carolina owe a duty to the client to be competent,
to act diligently, and to use their skill and knowledge zealously and faithfully on behalf of the
client. The client is entitled to place complete trust and confidence in the
lawyer, and rely on their advice. Legal malpractice can occur when the lawyer
breaches any number of these duties. These breaches can happen
for many reasons, such as:
-
Lack of competence, experience, or understanding for the
legal issues involved
-
Missing critical deadlines such as the statute of
limitations and other filing and court imposed deadlines
-
Failing to disclose or avoid a conflict of interest (a
"conflict of interest" can occur if the attorney's personal interests,
another client's interests, or former client's interests conflict with your
interests)
-
Settlement of a client's case without full authority
-
Settlement of a claim for far less than the actual worth to
receive quick contingency fees
-
Failure to file necessary documents or refusal to
acknowledge court orders
According to a study conducted by the American Bar Association's
Standing Committee on Lawyer's Professional Liability, most legal malpractice
claims occur in the areas of real estate law and plaintiff's personal injury
cases.
What must I prove in my case?
A plaintiff in a professional negligence case must introduce evidence which the
court finds sufficient to establish all of the following:
The failure to prove any one of these elements is fatal to the
successful prosecution of the case.
"Negligence" is defined as the failure to use ordinary care. Professional
negligence is the failure of a lawyer to do something that should
have been done in keeping with good and accepted legal practice.
"Proximate cause" is a legal
concept which essentially means a legal cause. The lawyer's negligence must be such that it did in fact cause the plaintiff's injuries and
that the injury suffered was reasonably
foreseeable beforehand as a result of the lawyer's failure to
render appropriate legal advice or services.
"Damage" is the harm done to a client that proximately results from the
lawyer's negligence.
How do I go about proving these elements?
Proof of professional negligence
must be made by way of expert testimony. A jury is not permitted to infer negligence from a
bad result. Thus, an attorney who is licensed,
practicing now or at the time in question, and who is familiar with the
standards of good and accepted legal practice for the legal services in question must
testify that the professional standards were not met.
Further, the expert attorney must testify that the plaintiff's damages
probably would not have occurred if proper practices had been followed
and that the lawyer should have reasonably foreseen this
or some similar result.
How long will my case take?
Normally it takes 1 to 3 years to bring a case to conclusion. The time required
varies because of factors such as the number of parties involved, the number of
depositions and investigation needed, the schedules and commitments of experts,
the judge, etc. If the case is tried and a favorable
verdict obtained, a defendant in South Carolina has an absolute right to appeal.
Appeal from a plaintiff's verdict usually prolongs the conclusion of the case an
additional 2 to 4 years.
Will I have to attend court hearings?
As your case is developed and prosecuted, there will be various court hearings
on legal matters. These hearings normally involve discovery issues such as the
Court determining what documents must be produced when one side has objected.
These types of hearings do not require your attendance or participation. If any
court hearing does require you to attend, you will be notified.
Will the defendant offer to settle my case?
In South Carolina, many cases are mediated before they are called to trial.
Mediation is a procedure whereby all parties come together with someone, usually
a lawyer or former judge, trained in the mediation process. A mediator has no
authority to impose a settlement on either side. You are under no requirement or
obligation to settle your case for any figure at any time. However,
sometimes mediation of a case will lead to a
settlement offer by the defendant.
If the defendant makes a settlement offer, how will I know if it is fair?
The determination to settle your case is always yours. Often, the defendant may
extend more than one settlement offer before the case goes to trial. Each
significant settlement offer will be conveyed to you along with our analysis of
potential risks and benefits.
What is a deposition?
A deposition is a legal proceeding provided by our South Carolina Rules of Civil
Procedure under which any party or witness may be asked questions under oath.
The witness' sworn testimony is taken down by a court reporter. Sometimes the
deposition may be videotaped. The deposition may then be used at trial basically
one of two ways. First, the deposition may be read or the videotape played in
lieu of the witness' appearance. Secondly, the deposition may be used to
"impeach" the witness -- to show that he or she said something differently under
oath than what they're presently testifying.
Will I have to give a deposition?
In many cases the plaintiff in a legal malpractice action will be required to
give their oral deposition. People with knowledge of relevant facts may also be
required to appear.
Are there any documents you will need from me?
We will need all of the written materials you presented to your lawyer or your
lawyer gave to you.
Any documents delivered to us may be copied. This includes photographs.
We urge our clients to retain copies in their personal files of all
documents that are delivered to us for safekeeping.
If you have suffered damages as a result of legal
malpractice, call the Futeral Law Firm
locally at (843) 284-5500, toll free at (877) 913-5500, or fill
out our online questionnaire.
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Disclaimer
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The contents of this web site are for informational purposes regarding legal
issues in South Carolina and are not intended to convey detailed legal advice on
specific issues. Transmission of the information contained in this site or any
sites linked hereto is not intended to create, and receipt does not constitute,
an attorney-client relationship. Our attorneys practice law only in
jurisdictions we are properly authorized to do so and do not seek to represent
anyone in any jurisdiction where this site does not comply with applicable laws
and bar rules. The attorneys of the Futeral Law Firm are
licensed to practice law in the State of South Carolina. Readers should not act
upon the information contained in this site without first seeking the advice of
an attorney licensed to practice in your area.
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