Legal Malpractice for Filing a Claim After Statute of Limitations Has Expired
In Armor v. Lantz, the court granted summary judgment to local counsel where the foreign counsel had failed to file a claim within the statute of limitations period. Armor v. Lantz, 207 W. Va. 672, 535 S.E.2d 737 (2000).
"Even assuming such broad responsibility on the part of local counsel, he would have only been accountable for the commencement and conduct of the litigation undertaken in his state." Id. at 750.
"To establish legal malpractice, a plaintiff must prove:
(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client;
(2) a breach of that duty;
(3) resultant harm legally caused by that breach." Carbone v. Tierney, 151 N.H. (2004).
Harm is an element of the negligence action, not merely a measure of damages; without harm, the elements of the claim have not been met.
To prove the resultant harm, the plaintiffs must demonstrate that but for their attorney's negligence, they would have been successful in their litigation.
"A plaintiff who alleges that an attorney's negligence caused the loss of a legal action or a legal defense can succeed only by proving that the action or defense would have been successful but for the attorney's misconduct." McIntire v. Lee, 149 N.H. 160, 165, 816 A.2d 993 (2003).