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legalgems, Lawyer
Category: Criminal Law
Satisfied Customers: 7084
Experience:  Just Answer consultant at Self employed
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I lost thru a jury trial on a domestic violence case. I am

Customer Question

I lost thru a jury trial on a domestic violence case. I am female, convicted by an all male jury. My lawyer, who i hired, did nothing i asked. Failed to call a key witness and present key evidence. I wanted to appeal the case. My lawyer promised to file for the appeal. He failed to perfect the appeal. So my appeal has been denied because he did not file it correctly. I would like to claim ineffective assistance of council. How do I do this. I am lost on what my next step should be.
Submitted: 25 days ago.
Category: Criminal Law
Expert:  legalgems replied 25 days ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  legalgems replied 25 days ago.

I am very sorry to hear this; can you please tell me what state this is in regards to?

Customer: replied 25 days ago.
Colorado, Aurora Municipal Court
Customer: replied 24 days ago.
I am working and cant take calls right now.
Expert:  legalgems replied 24 days ago.

OK, thank you.

I will prepare a written response here; since you are working you can go ahead and leave this page; the site will automatically send you an email when I post a response-that way you don't have to wait on this page. I will look into this for you.

Customer: replied 24 days ago.
thank you.
Expert:  legalgems replied 24 days ago.

If there is any new evidence, there is a basis for post conviction relief - pursuant to Rule 35(c):

Please see here and here

I would urge you to have an attorney review your case to see if there is anything that justifies this procedure.

If an attorney failed to honor the professional rules of conduct, there are sanctions that can be imposed:

a complaint can be filed here

The rules of professional conduct are here

I would urge you read all of the rules, to see which are applicable to your situation. But in particular see:

Rule 1.1, 1.3 and 1.4

Furthermore, if an attorney fails to perform as indicated, that can give rise to a breach of contract action; if they do perform but it is negligent, that can give rise to a legal malpractice action.

An agreement must contain four essential elements to be regarded as a contract. If any one of them is missing, the agreement will not be legally binding.
1. Offer
2. Acceptance
3. Intention (meeting of the minds)
4. Consideration (fair value exchanged)

For breach of a contract, the plaintiff is compensated by the defendant paying for the damages.

Legal malpractice is based on a negligence cause of action. Negligence is defined as a failure to perform with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but may consist of omissions when there is some duty to act. This cause of action has 5 elements: the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; harm caused by the negligent conduct; physical harm of actual damages; and proximate cause (reasonably foreseeable damages).

Damages include actual damages suffered, plus can include pain and suffering, and punitive damages designed to punish the defendant and serve as an example to others.

When pursuing litigation against an attorney, sometimes it is necessary to hire an attorney out of the immediate area (ie adjacent county) because if the attorney has been practicing for a long time, many will be reluctant to be involved.

Further questions? Please post here to continue the chat.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 24 days ago.
This is all stuff I already am aware of. Easily looked up anywhere, but None of these things will help my case. I wanted to appeal this case. I am asking about ineffective assistance of council, post conviction relief. Anyway to be able to get back into requesting for an appeal on this case.
Expert:  legalgems replied 24 days ago.

I'm sorry; that was not indicated in the original question so I tried to provide all avenues of relief that are available. Ineffective assistance of counsel is not a grounds for a new appeal- the statute unfortunately excludes that; so when the appeal is not an option, generally the next step is to see if one qualifies under the post conviction relief, which is the information I included (ie new evidence). Otherwise, the next step would be to sue for monetary damages (ie harm to reputation).

Another option is to have the criminal record sealed, but that is only available in limited circumstances (ie diversion program completed) but if that is applicable, here is that information:

Unfortunately I have done an extensive review of case law and cannot find any support for inadvertence of counsel. The reason is that most states prefer the finality of a judgment, and they expect the attorneys to be competent, and unfortunately since there is a civil remedy, and limited criminal remedies, they have not felt the need to adjust the law for those who are truly injured by an attorney missing an important deadline.

Expert:  legalgems replied 21 days ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.

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