Everybody makes mistakes… even seasoned professionals. That is why most doctors, dentists, accountants and lawyers protect themselves by carrying malpractice insurance. An injured patient, or client, will usually seek to sue the professional for the harm he or she has caused. When a lawyer is sued, it is called legal malpractice.
Legal malpractice cases are different from other types of malpractice cases. They are particularly difficult and expensive to pursue. Not only does the injured party have to prove that the lawyer was negligent, there also needs to be a showing that “but for” the lawyer’s negligence there would have been a favorable outcome. This is what is often referred to as having to win a “case within a case.”
In order to prevail in a legal malpractice case, it is not enough to show that the lawyer did something wrong. The injured party has to show that “but for” the lawyer’s failure to meet the necessary standard of care, he or she would have received a collectible judgment (or a larger judgment than was actually received) in the underlying case. In other words, not only do you need to be successful in proving the lawyer’s negligence (case #1), you must also prove that the original case would have been successful without the attorney having committed malpractice (case #2.) This is what makes legal malpractice cases so expensive to undertake.
Take the example of a lawyer who fails to start a lawsuit within the time limit set by law, i.e. statue of limitations. If the case that the lawyer failed to timely file suit on were a case where the lawyer’s client rear-ended the party to be sued, there most likely would not be a finding of legal malpractice… even though the lawyer’s negligence prevented the client his day in court. It’s been said that in most legal malpractice claims, the hardest part of the case begins after you’ve established your lawyer’s negligence.
Another factor that makes legal malpractice cases difficult is that very few lawyers will undertake such cases. Many lawyers won’t take a legal malpractice case on general principle – they find the idea of suing a fellow lawyer distasteful. In addition, they may fear that taking such a case would damage their reputation and standing within the legal community.
So, to recap, only the most promising legal malpractice cases will be considered, by only a few lawyers willing to practice in that area.
At the end of the day, not every bad thing that happens to a case is the lawyer’s fault. Trial judges issue bad rulings every day that could end or damage a plaintiff’s case. That is why there are appellate courts. Then there is the “attorney judgment rule.” Attorneys, as professionals, are granted wide discretion in making reasoned decisions about what, when and how to pursue a defense or legal claim. An attorney would not be liable if, in spite of their good judgment, a defense or action fails. So, just because a claim turns out to be unsuccessful, that does not mean the lawyer was negligent and committed actionable malpractice.
As you can see, it takes some pretty egregious behavior to have a good legal malpractice case. That is not to say that legal malpractice cases are impossible to win, but they tend to be few and far between. If you suspect you have been the victim of legal malpractice, get a free consultation from a legal malpractice lawyer in your area … if you can find one.
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