If the injured party is a minor (under age 18) and not emancipated (Fam.C. § 7000 et seq.), or is mentally incompetent (unable to comprehend attorney’s advice or to appreciate nature of the litigation), the claim must be prosecuted through a guardian, guardian ad litem or conservator of the estate, as the case may be. [Fam.C. § 6601; CCP §§ 372– 373; see ¶ 5:214 ff.]. However, the cause of action belongs to the injured minor or incompetent for detriment that party suffered; recoverable damages are simply awarded to the named representative (guardian, etc.)on the minor’s or incompetent’s behalf.

A legal malpractice action may be filed. A legal malpractice is not an action for “personal injury, property damage, or wrongful death.”. In an ordinary legal malpractice case, the negligent attorney is liable for damages the client was not able to recover from a prior tortfeasor (medical malpractice defendant under these facts).  Also, expert testimony is not required in a legal malpractice action where the attorney’s failure of performance “is so clear that a trier of fact may find professional negligence unassisted by expert testimony” or, stated another way, where the attorney’s negligence “is readily apparent from the facts of the case.” [Goebel v. Lauderdale (1989) 214 CA3d 1502, 1508, 263 CR 275, 278; Stanley v. Richmond (1995) 35 CA4th 1070, 1093, 41 CR2d 768, 781;  [Brandon G. v. Gray (2003) 111 CA4th 29, 39–40, 3 CR3d 330, 337–338;].While other attorney-client disputes may properly be the subject of an arbitration provision (above), the scope of coverage must be clear and unambiguous. As the one who drafted the agreement, the attorney is chargeable with the consequences of ambiguities therein. Any uncertainty will be resolved against the attorney (CC § 1654). [Mayhew v. Benninghoff (1997) 53 CA4th 1365, 1370, 62 CR2d 27, 30; Lawrence v. Walzer & Gabrielson (1989) 207 CA3d 1501, 1506–1507, 256 CR 6, 9—provision requiring arbitration of disputes “regarding fees, costs, or any other aspect of our attorney-client relationship” applied only to fee disputes and did not cover legal malpractice claim. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.


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