The decision to hire a lawyer to prosecute or defend a lawsuit on your behalf is a critical decision. The client has the right to expect professional advocacy in keeping with the lawyer’s reasonable duty of care to their client throughout the litigation. But what if your attorney makes mistakes during the litigation to the detriment of the client? What happens when a lawyer who was brought in to defend their client in court fails to deliver a sound defense? Was your lawyer negligent?
What Is Legal Malpractice?
Legal malpractice occurs when an attorney fails to perform according to the proscribed standards and codes of ethical and professional conduct. Not getting the expected outcome in a case is not enough to warrant a malpractice claim: attorneys must have been negligent, in breach of a contract, or otherwise in violation of the applicable Bar Association’s Rules of Professional Conduct. In order to win a legal malpractice case against an attorney, it must be shown that a typical lawyer would have prevailed in your case, but for lawyer negligent handling.
For legal malpractice claims based on negligence, you need to prove the following four elements:
- The lawyer owed a duty to provide competent and skillful representation,
- The lawyer breached the duty by acting carelessly or by making a mistake,
- The lawyer’s breach caused an injury or harm, and
- The harm caused a financial loss.
Have You Suffered Financial Loss Due to Lawyer Negligent Handling of Your Case?
Typically, the party harmed by their lawyer in litigation seeks a new attorney with experience and skills in bringing this kind of legal malpractice claim. Specifically, the malpractice lawyer essentially retries within the malpractice trial the underlying litigation without the alleged errors made by previous counsel – hence, the case-within-a-case, also called the trial-within-a-trial or the suit-within-a-suit. The malpractice attorney needs to show that without the first issue of lawyer negligent handling, the malpractice client would have won the case or at least done better.
Examples of the kinds of missteps an attorney might make that could rise to the level of malpractice in litigation:
- Failing to file a lawsuit or missing the filing deadline (statute of limitations)
- Failing to sue all essential parties
- Failing to conduct an adequate investigation or perform thorough research
- Failing to properly serve the notice and complaint on the defendants or to file all required documents with the court
- Failing to include all viable legal claims in the complaint or defenses in the answer
- Failing to answer the complaint on time, thereby giving the plaintiff a default judgment
- Failing to conduct thorough discovery (the right before trial to ask parties and witnesses questions under oath and request documents from the other party to uncover evidence)
- Neglecting to appropriately participate in the jury selection process, if applicable
- Making inadequate or mistaken arguments in court, failing to object when appropriate to the other side’s witness questioning or evidence
- Failing to call all necessary witnesses, including expert witnesses when necessary
- Failing to submit relevant evidence or ask key questions of witnesses
- Failing to make appropriate motions
- Failing to discuss with the client the right to ask for a new trial or a judgment notwithstanding the verdict or failing to file these on time
- Failing to discuss with the client the right to appeal or filing an appeal late
- And other negligent professional choices a lawyer could make in litigation
At the legal malpractice trial, the plaintiff’s lawyer presents the underlying case – except without the negligent omission or mistake – in an attempt to prove that if the original attorney would have upheld their duty of care in the original litigation, the client would have obtained a better result. This suit-within-a-suit standard is the way to prove that “but for” the lawyer’s negligence, the client would have had a more favorable outcome. In other words, the original attorney’s negligence caused the client harm, a necessary element of legal malpractice.
If you believe you are the victim of legal malpractice or a negligent laywer, please contact us for a free consultation.