Our Charleston Lawyers Answer Questions About Legal Malpractice

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 law firm of Futeral & Nelson, LLC, we assist clients who have been damaged by their lawyer’s mistake or conduct.

What is legal malpractice in South Carolina?

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 legal malpractice case?

A plaintiff in a professional negligence case must introduce evidence which the court finds sufficient to establish all of the following:

  • Attorney-client relationship
  • Breach of Duty to the Client
  • Proximate Cause
  • Damages

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 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 amount of investigation needed, the schedules and the commitments of the 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 what documents must be produced or excluded. 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 the 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 one of two ways. First, the deposition may be read or the videotape played in lieu of the witness’ appearance. Second, the deposition may be used to “impeach” the witness — to show that he or she said something different 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.

Legal Malpractice Lawyers in Charleston, SC

The Charleston Legal Malpractice Attorneys at Futeral & Nelson, LLC help clients in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, James Island, West Ashley, Folly Beach, Sullivan’s Island, Isle of Palms, Awendaw, McClellanville and the surrounding areas.

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