Jan 20, 2022 · Expect the unexpected. It should be noted that a strong malpractice risk mitigation strategy doesn’t completely eliminate risk. You can follow all the best practices above—including robust recordkeeping, consent to treatment, and expectation management—and still find yourself facing a lawsuit.
Feb 08, 2019 · This is often where the rubber meets the road in legal malpractice cases. Even where an attorney made an obvious mistake, that mistake must have injured the client. The classic example of negligence is the attorney who did not file a lawsuit before the statute of limitations expired. Even if it was an inexcusable error, it gives rise to a ...
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At the outset, notify people what will be done with case materials, photos and audio and video recordings, and secure their consent. Also, make sure rooms where confidential conversations occur are soundproof. Know federal and state law. Know the ins and outs of your state's laws that relate to your practice.
Legal malpractice cases are expensive because you are essentially litigating two cases: the malpractice case and the underlying matter (i.e., the case-within-the-case). In addition to legal fees, the client will almost always need an expert to establish that the attorney’s conduct fell below the standard of care.
The classic example of negligence is the attorney who did not file a lawsuit before the statute of limitations expired. Even if it was an inexcusable error, it gives rise to a viable legal malpractice claim only if the client proves to a “legal certainty” he or she would have won the case had it been filed on time. The client must also prove how much money he or she would have won and that the judgment was collectible.
Was the attorney negligent? Often, clients review an attorney’s actions with the full benefit of hindsight, but to determine negligence, put yourself in the attorney’s shoes when the “mistake” happened. Decisions that were reasonable at the time may look foolhardy with the benefit of hindsight. Nor is every attorney expected to be Clarence Darrow or Perry Mason. Rather, attorneys ordinarily must act consistently with the community standard of care. In other words, not every mistake rises to a breach of the duty of care.
One of the best ways to address competence issues is to stay in touch with the profession through conferences, continuing education, seeking diplomate status, consulting with colleagues, and reading journals, guidelines and other publications, says Sparta. For example, if you begin seeing an adolescent with anorexia, but infrequently treat eating disorders, read up on the professional literature and arrange for supervision or consultation to ensure that the treatment is adequate.
When they fail to give details, sticky situations can arise. For example, when psychologists fail to explain their duty to report abuse and neglect to an adolescent client before therapy begins, they may be unsure what to do if abuse is later revealed that the client doesn't want reported.
To help prevent confidentiality problems, psychologists can: Discuss the limits of confidentiality, including their uses of electronic transmission and the foreseeable uses of confidential information, as soon as possible . Ensure the safe storage of confidential records.
When psychologists do end up in ethical quandaries, it's often because they unwittingly slid too far down a slippery slope--a result of ignorance about their ethical obligations or thinking they could handle a situation that spiraled out of control.
Talk to the ethics experts, and they'll tell you the best defense against an ethical problems is a good offense. By looking out for foreseeable conflicts and discussing them frankly with colleagues and clients, practitioners can evade the misunderstandings, hurt feelings and sticky situations that lead to hearings before ethics boards, lawsuits, loss of license or professional membership, or even more dire consequences.
Mandatory reporting laws were not created to have clinicians decide whether abuse or neglect is happening, says Cohen, but to have them bring the facts to the attention of authorities, who will decide. "If you wait and nothing bad happens, you've still violated the law," he says.
For example, when one partner wants a better marriage but the other wants a "painless" divorce, psychologists should clarify at the beginning that they cannot decide whether the couple should stay together or offer expert opinions later on during a divorce suit.
First, more than 90 % of all lawsuits are settled out of court, most of them virtually on the courthouse steps after months or years of preparation and expense. Some of this expense is necessary, but, on the whole, huge quantities of time and money are spent preparing for events that don’t occur.
The high cost of resolving disputes has several causes, but the most important is the mind-set established and nurtured by the adversary system. The essence of this system is that lawyers for opposing parties have the responsibility to present every piece of evidence and make every legal argument that might possibly benefit their clients. Pretrial discovery and other litigation procedures are designed to leave no stone unturned in the search for relevant evidence. By training, temperament, professional duty, and frequently by client expectation, attorneys tend to exploit these procedures to the fullest and to persevere as long as any hope remains. In fact, each lawyer has an obligation to be as zealous an advocate as possible, even—sometimes especially—to the detriment of discovering the truth and of resolving conflicts to the satisfaction of both parties.
U.S. corporations pay more than $ 20 billion a year to litigation attorneys—an alarming fact that distracts our attention from other and often more important business costs of litigating our disputes. Lawyers’ fees and other direct costs get the most attention because they’re easy to measure.
Alternatives to traditional litigation have been around for many years, but Alternative Dispute Resolution (ADR) as a formal technique and an accepted business practice emerged in the 1970s.
Judge Dorothy Nelson of the U.S. Court of Appeals in San Francisco traveled to Israel several years ago to study the laws of divorce as administered by different religious groups. In Jerusalem she attended a court hearing conducted by three Greek Orthodox priests in long black robes and long white beards. Court was conducted in a Quonset hut with paint peeling from the walls, furnished only with a plain wooden table and chairs. A wife was suing her husband for divorce. As her lawyer rose to his feet holding a handful of papers from which to plead her case, he was waved gently aside by the presiding priest, who turned to the wife and asked her to tell her own story.
Retired judges are occasionally used in traditional arbitration too, but the rent-a-judge program uses normal trial court procedures (sometimes modified by the disputants). Moreover, the judge’s decision has, by statute, the legal status of a real court judgment.
Since it isn’t necessary to wait for a court date or to conduct the proceedings in public, the program buys a lot of time and privacy. However, some observers are uneasy about starting down a road that might lead to a formally sanctioned class of justice available only to those who can pay for it.