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Twenty Year Litigation Expert, Tommy Pittenger, Esq., Provides Insight on Legal Malpractice

Suing an Attorney for Failure to File Your Claim on Time in Louisiana

Baton Rouge, LA, USA – WEBWIRE

Every legal claim has a statute of limitations (prescription)—a set time period in which a claim can be brought. And a statute of limitations (prescription) can vary from one claim to another depending on the type of claim it is. It is imperative that a claim be brought within the allowable time as dictated by the statute of limitations (prescription). Claims filed after the expiration of the statute of limitations (prescription) will be invalidated and the right to bring that claim will be terminated. In Louisiana, if an attorney was hired to bring the claim, and that attorney fails to file in accordance with the requirements in a timely fashion, that attorney can be sued for legal malpractice.
Breaking Down the Factors of a Legal Malpractice Claim
A legal malpractice claim is comprised of four basic parts: 1) a duty to act, 2) a breach of that duty,
3) the indication of cause—that the breach of that duty did cause, 4) the damages. Examining the duty: the duty requires that the claimant specifically show that the hired attorney did in fact owe an obligation to act with reasonable, considered care. Examining breach: the breach requires that the claimant specifically show that the hired attorney did breach the duty to claimant. Examining cause: the claimant must demonstrate that the hired attorney’s actions or inactions did cause harm (financial harm in this case). Examining damages: the claimant must demonstrate that she or he suffered a financial loss due to the attorney’s actions or inactions.  
In Louisiana, to prove and win a legal malpractice claim, a client must first prove that his/her former lawyer made a mistake while previously representing them. Once a mistake is proven, the burden of proof then shifts to the previous lawyer to prove that the client’s underlying claim couldn’t be won. In other words, in some cases, a lawyer may have made a mistake, but if the underlying claim couldn’t have been won, then the client cannot recover.
Considering a present case: Tommy Pittenger represented a plaintiff who was severely injured in an oil rig explosion when a pump malfunctioned, blew up and cut the leg off the client. The client hired a lawyer who then filed a worker’s comp claim and a claim against the manufacturer of the pump. That lawyer failed to secure and inspect the pump that malfunctioned and the client’s claim against the pump manufacturer was dismissed for lack of evidence and lack of an expert opinion. In this case, we successfully proved that the lawyer made a mistake. The burden then shifted to the original lawyer to prove that the claim against the pump manufacturer would not have been successful. He couldn’t do this because the pump had disappeared due to his negligence. The Pittenger Law Firm was able to make a very satisfactory recovery for this client
It is very difficult for a lawyer in a legal malpractice case to try and disprove the original claim. His original file will contain correspondence, memos and pleadings where he/she originally believed strongly in the claim. It doesn’t play well to a jury where a lawyer says, “ok, I might have made a mistake, but the original claim was unwinnable”. Why would a lawyer take a case that he/she thought they couldn’t win or settle?
Most legal malpractice cases involve lawyers missing deadlines, including the deadline to file suit. Other deadlines are set by the Court and in most cases, if a lawyer misses these deadlines, a client’s case can be dismissed.
Any time a lawyer makes a mistake that harms the client, he/she has an ethical and legal duty to let the client know about the legal mistake.


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