When you hire an attorney, you expect them to provide honest and competent services. Your attorney must follow rules of professional responsibility, and they owe you a fiduciary duty.
Unfortunately, not every attorney can or will provide the legal services and representation they should. This can often cause you serious harm as a client.
When an attorney violates the rules of conduct or the responsibilities they owe you they can face disciplinary action. You can also hold them liable in a malpractice lawsuit. A successful suit provides you with legal relief, often including monetary damages for your losses.
However, a successful legal malpractice case requires intimate knowledge of the law to show what the lawyer should have done and why their actions fell short of the legal standard. The average person may have an idea that their lawyer did something wrong but may not know how to articulate what happened and explain it in court in proper legal terms.
Some lawyers believe in upholding the standards of the legal industry and protecting the interests of clients. They have specific experience in holding other lawyers accountable for failing to live up to their duties. You should hire one of them for your legal malpractice case to have the best chance of success and maximize the damages you can recover.
If you believe an attorney engaged in malpractice and caused you harm, seek a legal evaluation with a lawyer who brings malpractice claims. You might recover for all of your losses due to the initial attorney’s sub-standard representation.
How to Successfully Prove a Legal Malpractice Case
Any professional malpractice case involves reconstructing what happened and what someone did or did not do in your case. In a medical malpractice case, you will need to reconstruct what happened in the doctor's office or operating room with the help of expert witnesses. You must prove that the medical professional did not act as a reasonable doctor should have under the circumstances.
The same thing is true in a legal malpractice case.
The relevant standard that you must meet to win your case is proving that:
You have the burden of proof for each of the three elements. You will not win your case if you fail to meet one of them.
A Bad Result in Your Case Does Not Mean Your Lawyer Breached the Duty of Care
Ultimately, you must prove that the attorney breached their standard of care. While you may second guess what a lawyer did, and you are not pleased with the result in your case, you may not know what went wrong or what the lawyer did. The attorney will not admit to making a mistake because they know it will cost them money.
You may think something went wrong in the representation, but you may be unable to articulate it. You can suspect that your lawyer did something wrong when the settlement comes in far lower than you expected or when you lose a case that you thought should have been easy.
You Need a Lawyer to Prove that a Lawyer Did Something Wrong
Proving that a lawyer should be held responsible for your losses requires knowledge of the law and the practicalities of lawyering. Not every legal case will end with the best result for you.
You can lose a trial or a deal can fall through. The law does not expect perfect attorneys; some lawyers are better at their jobs than others. One side may just get a better result than the other.
There is a fine line between a lawyer not doing well on your case and one who commits legal malpractice. Plenty of bad lawyers are out there, but not all have breached client responsibilities. A lawyer can be out-lawyered by opposing counsel or may have been at their worst. There will usually need some kind of intentional conduct, gross incompetence, or negligence to be considered malpractice.
To prove malpractice, you must know what a lawyer should have done under your circumstances and compare it to what they did. Your case will look like a medical malpractice case, where you will need to reconstruct what happened and have experts state what a lawyer should have done under those circumstances. In some cases, it can be easier than others. For example, a lawyer does not miss a statute of limitations in your case. It is more complex in other cases, such as when a lawyer settles a case too early.
Examples of Legal Malpractice
Here are some examples of legal malpractice:
- Missing deadlines to file a case - Courts do not give any grace period or leeway, even if you miss the deadline by a day. Missing a deadline is an inexcusable mistake that an attorney should never make.
- Lack of preparation for your case - The attorney must spend enough time adequately preparing, including learning the facts and preparing to go to court.
- Accepting a case for which they have inadequate training - Attorneys should have some experience or knowledge in the practice area when they accept a case. If a divorce attorney takes a criminal law case, and they have no idea what they are doing, they can be liable for malpractice when they make a mistake that harms their client.
- Not keeping a client informed - A lawyer must notify the client of crucial developments in their case. If they fail to tell them, and the client suffers damages, the lawyer can be liable for malpractice.
- Settling your case too soon - If a lawyer advises you to accept a very early settlement offer when there is a potential to get far more in negotiations (this often happens when the lawyer needs and wants a quick check), it can be malpractice.
The third element of the test for legal malpractice may also be challenging to prove. As mentioned, litigants lose cases all the time. It may not always be easy to show that your lawyer proximately caused your loss or adverse result. In defense, a lawyer can claim that you will not have received a favorable outcome, regardless of what they did or did not do.
You Need to Show Exactly How the Lawyer Harmed Your Case
Essentially, you must prove that you had a meritorious case and should have fared better had your lawyer upheld their standard of care. Again, this is another legal matter involved in the case - proving that you should have had more success in your original matter.
An attorney will need to evaluate your prior case to learn whether you had a chance of succeeding. As the client, you likely always believed you had a strong case and a good chance of winning. That might have been part of the problem if your attorney led you to believe you had a stronger case than you did.
Here, you will need an accurate readout from an experienced attorney who will review the facts and law in your original case.
An Insurance Company May Defend the Lawyer from Your Lawsuit
Lawyers do not represent themselves in malpractice defense cases. They usually pay for a malpractice insurance policy that covers them when they are found liable (although some solo practitioners take a chance practicing law without malpractice insurance).
Some lawyers can carry as much as $10 million in malpractice coverage (the maximum amount of insurance that many companies will provide). Personal liability can bankrupt them. The insurance company must defend the malpractice case like every insurance company does when their client faces legal action.
The insurance company will hire its attorney to defend against the claim. These are likely attorneys who have extensive experience in malpractice defense. Many of these lawyers do nothing but defend lawyers accused of wrongdoing.
Thus, you face an experienced lawyer who knows what they are doing. They will not take any mercy on you if you try to handle your case. Success for these lawyers is getting their clients off the hook for no money or as little as possible. You need an attorney who knows the practice area and can go toe-to-toe with experienced malpractice defense lawyers.
Legal Malpractice Lawsuits Involve a Case Within a Case
The insurance company knows that you have a high burden in malpractice cases. They know there is a "case within a case" when addressing what happened in the lawyer's representation of your matter.
In other words, you will need to show how you should have obtained a better result if the lawyer had done their job, which requires getting to the bottom of your original case. You must show that there was some merit in your case that will have entitled you to a better result. In other words, two cases merge into one, and you need an attorney who can handle all the moving pieces.
You Can Recover Significant Damages
Further, much money is on the line in a malpractice case. If you are a corporate client looking for a malpractice attorney, your lawyer's error might cost you a lot of money. They have an obligation to pay you for the full amount of your damages.
Here are the damages that you might obtain in a legal malpractice case:
- The financial difference between what happened in your case and what might have happened had the lawyer not committed malpractice. This can be a challenging number to estimate, and you will need an experienced attorney to help you quantify this aspect of your damages.
- Emotional distress for the damage to your mental health from the lawyer's malpractice (this depends on the jurisdiction - some states do not allow these damages at all, while others do allow emotional distress damages when the lawsuit involves a very sensitive and personal matter).
- Punitive damages for egregious or intentional examples of misconduct. Juries do not often award punitive damages, but they do it to send the lawyer a message in extreme cases. The prospect of punitive damages often forces the insurance company to the negotiating table because the result will be far worse for them in court.
The average legal malpractice case may be worth hundreds of thousands of dollars. Depending on what your lawyer did (or did not do), the value of your case can be even higher. You should not leave anything to chance by trying to take on a lawyer defending another lawyer on your own.
In addition, you want to ensure that an attorney faces the consequences for what they did. While getting justice is essential, you also do not want others to go through what you did. If an attorney loses a malpractice case, it can cost them future clients and even the ability to practice law.
Call a Legal Malpractice Attorney for Your Malpractice Case
Contact a legal malpractice attorney at the beginning of your dispute with your attorney. Lawyers do not like to be sued for malpractice because it is a significant stain on their reputation. You may have some leverage in resolving the issue by coming to the table with an experienced attorney. Your attorney may help you file a complaint with the state bar where the attorney is licensed as a first step in your case.
Then, your lawyer will help you examine your legal options. You can reach a malpractice settlement with the attorney and their insurance company, which can help you avoid the need for a trial. With an attorney, you may have a strong chance of being compensated for what you have lost.