My Prior Attorney Failed to File My Lawsuit in Time: What do I do Now?

Under Tennessee law, the failure to file a lawsuit within the statute of limitations period is considered legal negligence unless there are extraordinary circumstances.  If your previous attorney failed to file your lawsuit within the statute of limitations period you should hire a different attorney to help you evaluate your case and, if it is necessary and appropriate, assert a claim against that attorney.

There are several steps to proving Tennessee legal malpractice.  That is why it is important to have legal representation to help you with your case.

1. The Attorney Owed the Client a Duty

When trying to prove a legal malpractice case, the first step is establishing that the attorney owed the client a duty.  This duty usually arises from an employment agreement created between the attorney and the client.  In these agreements both parties will consent to the establishment of an attorney-client relationship.

An example would be if the attorney and the client sign a contract for the attorney to handle a personal injury action for the client.  The attorney then owes a duty to the client to take reasonable steps in handling that claim.  However, there would not be a duty for the attorney to perform a separate legal claim that was not agreed to, such as a divorce or a bankruptcy.

2. The Attorney Breached that Duty

After it has been established that the attorney owed the client a duty, the next step is to show that the attorney breached his or her duty to the client.  There are certain obligations that an attorney owes to his or her client by law.  In order to establish that there was a breach, the client needs to show that the attorney failed to exercise the care, skill, and diligence that is commonly exercised by attorneys practicing law under similar circumstances.

Using poor strategy is not a breach of duty.  The attorney must have made an error that a reasonable attorney would not have made under the circumstances.  A breach of duty usually needs to be proven through the use of an expert witness.

Common types of legal malpractice include:

• Failure to file an action within the statute of limitations;
• Failure to follow court imposed deadlines;
• Failure to respond to the pleading filed by opposing parties;
• Failure to inform clients of developments in their case; and
• The misuse of client funds.

3. Damages Caused by the Breach of Duty

Lastly, the client needs to establish that he or she suffered damage, usually financial, as a result of the attorney’s misconduct.  However, if it is shown that the financial damage would have resulted despite the misconduct of the attorney, then it is unlikely that there is a valid claim for legal malpractice.  There are many different ways of proving damages depending on the type of case.  For example, if the claim for legal malpractice is based on the negligent handling of a lawsuit, the client needs to establish that he or she would have been successful in the underlying action if only the attorney’s conduct not been negligent.

It is important to note that your potential Tennessee legal malpractice lawsuit has a one year statute of limitations period which, if it expires, will forever bar you from bringing you claim.  The date the statute of limitations begins to run is the date of the negligent act, such as missing an important deadline.  However, in some circumstances your prior attorney may attempt to hide their negligence.  In this instance, the date of the statute of limitations will be from the date you either knew or should have known of your prior attorney’s malpractice.

There are many different types of legal malpractice claims to be aware of.  Here at Bailey and Greer, PLLC our Tennessee legal malpractice attorneys understand how to effectively pursue your claims.  Our legal team has a proven track record of compassionately representing our clients harmed by unethical legal representation, which is included in our testimonials page and our successful case results.  Please contact us today to receive your free case evaluation by dialing locally to 901-680-9777