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Fairness After Folly: Making a North Carolina Legal Malpractice Claim

When the poet Alexander Pope wrote, “To err is human, to forgive divine,” he was not referring to gross negligence or misconduct by an attorney. When an attorney or law firm has clearly dropped the ball or otherwise harmed your case, you have the right, as an injured client, to bring a cause of action for legal malpractice.

Grounds for a Legal Malpractice Claim

In North Carolina as in other states, the most obvious grounds for pursuing a legal malpractice claim is when your attorney has missed a crucial statute of limitations. If a serious personal injury claim is barred because the attorney did not file it in a timely manner, you can no longer proceed against the doctor, distracted driver or anyone else who caused the injury.

You can, however, seek to recover from the attorney or law firm that failed to file the case in time. To be sure, recovery may not be easy. After all, in order to recover for attorney malpractice, it is essentially necessary to win the “case within the case.”

In a legal malpractice case, the injured party has to show that, if it had not been for the original attorney’s negligence or professional misconduct, the injured party would have been likely to prevail in the original case.

But if the injured party can make this showing, he or she can hold the original attorney accountable for the damages lost due to the negligence or misconduct.

North Carolina attorneys who commit legal malpractice can also be disciplined by the state bar.

Other Examples of Negligence or Misconduct

A missed filing deadline is by no means the only possible grounds for an attorney malpractice claim. For example, lawyer negligence could involve re-using virtually the same patent application as was used for a previous client. In a current case involving a genetic research laboratory, a law firm may have cost its client millions of dollars in lost licensing fees after a sloppy patent application was rejected.

When attorneys fail in their professional duties, the injury to clients can be very serious. This is as true in personal injury cases as it is in intellectual property cases or in any other area of the law.

Yes, to err is human and to forgive divine – yet human justice sometimes requires accountability as well.


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