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Hi again. I do remember our prior discussions. Today is the last day to appeal your case? And you want to get out of the settlement? Unfortunately, I do not believe that you can get out of the settlement that you consensually signed (despite the pressure). Settlements are viewed as contracts. You gave up your right to litigate the matter by accepting the $140k. Therefore, if you have any recourse, it would be against your attorney who pressured you into making a poor deal. What state are you in again? I can lookup the requirements to win a malpractice case.
DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the State of Maryland. Accordingly, you acknowledge that (1) we have not formed an attorney-client relationship, and (2) my post is general information only and is not legal advice. For legal representation and/or legal advice I urge you to consult in person with an attorney in your local area.
Hi again. Glad your computer is up and running again.
In the recent case Ang v. Martin, 114 P.3d 637 (WA, 2005), the Washington Supreme Court wrote the following about legal malpractice:
A plaintiff claiming negligent representation by an attorney in a civil matter bears the burden of proving four elements by a preponderance of the evidence:
(1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.
Hizey v. Carpenter, 119 Wash.2d 251, 260-61, 830 P.2d 646 (1992); Bowman v. John Doe Two, 104 Wash.2d 181, 185, 704 P.2d 140 (1985) (noting that, in legal malpractice suits, proof of attorney-client relationship is grafted onto customary elements of negligence claim). The fourth element, proximate causation, includes "[c]ause in fact and legal causation." Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985). Cause in fact, or "but for" causation, refers to "the physical connection between an act and an injury." Id. at 778, 698 P.2d 77. In a legal malpractice trial, the "trier of fact will be asked to decide what a reasonable jury or fact finder [in the underlying trial or `trial within the trial'] would have done but for the attorney's negligence." Daugert v. Pappas, 104 Wash.2d 254, 258, 704 P.2d 600 (1985) (emphasis added). Legal causation, however, presents a question of law: "It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact." Hartley, 103 Wash.2d at 779, 698 P.2d 77. To determine whether the cause in fact of a plaintiffs harm should also be deemed the legal cause of that harm, a court may consider, among other things, the public policy implications of holding the defendant liable. Id.
You definitely had an attorney-client relationship because he was representing you. You were damaged because of the poor outcome of your case. The other two elements will be more difficult to prove … did the attorney do something to breach his duty of care … and did it cause your damage? The judge/jury in your malpractice lawsuit will need to determine if the outcome in your case would have been different had the attorney not made his mistakes.
Have you consulted with a legal malpractice attorney yet? I suggest you do so.
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DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the State of Maryland. Accordingly, by continuing in this discussion and/or by “accepting” my answer you acknowledge that (1) we have not formed an attorney-client relationship, (2) my answer is general information only and is not legal advice, and (3) you should not rely on my answer in undertaking any course of action without first consulting with an attorney in person who can review all relevant facts.
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