Legal Malpractice Law
Introduction
Disappointment with the results or advice you receive from your attorney can cause you to seek the advice of another attorney about proceeding against the first attorney on a claim of legal malpractice. But a poor result or bad advice alone is not sufficient to be successful on a claim of attorney malpractice. Alleging legal malpractice against a former attorney should not be done before many factors, both factual and legal, have been evaluated by an attorney experienced in the field of professional malpractice law. Failure to do so can lead to your being disappointed a second time.
Attorney Malpractice Law
An attorney is not expected to be infallible or perfect. A lawyer does not undertake to be an insurer or guarantor of a particular result, unless you and your attorney have agreed to achieve a specific result beforehand.
In general, a lawyer undertakes a responsibility and obligation to provide fair and reasonable professional services on a par with other attorneys acting under similar circumstances. Some states require that an attorney act with an adequate degree of skill, with reasonable care, and to the best of his or her knowledge. Lawyers are always expected to know what is proper and improper pursuant to the law and to present the wisest course to the client. But an attorney is not required to exercise extraordinary skill or ability. Nor is an attorney held liable for an error of judgment, so long as the attorney exercises his or her best judgment based upon his or her knowledge and experience.
Negligence, or the failure to use reasonable care, is the category usually associated with legal malpractice. The assumption is that a lawyer has committed an error that would have been avoided by the hypothetical "competent" attorney who complies with the required standard of care. Unlike the usual negligence cases, the test of breach of duty in a lawyer negligence case is not in relation to the "reasonable person" standard, but rather whether there has been a departure by the attorney from the usual and customary practice of other lawyers under similar circumstances.
When an attorney agrees to handle a matter for you, he or she impliedly represents that 1) he or she possesses the required degree of learning, skill and ability necessary to the practice of law and which other attorneys in the same profession ordinarily possess, 2) he or she will exert his or her best judgment in the handling of the matter, and 3) he or she will exercise reasonable and ordinary care and diligence in the use of his or her skill and in the application of knowledge to the client's cause. To succeed in a legal malpractice case, you must prove the following:
(2) that your attorney either by doing something or failing to do something violated or breached his or her required duty toward you;
(3) that the attorney's breach of duty was a substantial cause of your damages or injury; and,
(4) that you did, in fact, suffer actual injury, loss or damage.
In attorney malpractice cases, the causal requirement is worded in the negative. For example, it is often said that the client can recover against the former attorney only when it can be shown that the harm to the client would not have occurred "but for" the negligence of the lawyer. In other words, the client must show that only because of the negligence of the lawyer was the client's cause of action or defense against a claim in the underlying action unsuccessful.
This is shown in a case where the client's attorney failed to appear in court to defend the client and a default judgment was entered against him. The client paid the judgment and then sued the attorney, contending that it was irrelevant whether there was a valid defense since the attorney's negligence caused the default. In rejecting the client's argument, the court said that it was the client's burden of proof to show that a judgment would not have been won or that a lesser amount would have been received had there been proper representation.
There is another hurdle to clear before you can recover against your former attorney. Many malpractice actions fail because the client is unable to show that, even if a favorable judgment had been recovered, there would have been a solvent defendant to pay it. A claim that could not have been collected on, even if competently prosecuted, cannot result in malpractice liability for failing to prevail. The solvency requirement is intended to demonstrate whether the original defendant could have paid a judgment, had one been rendered against him or her.
In a legal malpractice action, a client may try to recover both direct and consequential damages. Direct damages are compensation for the loss of the expected benefits from the attorney's services and any expenses incurred due to the attorney's failure to achieve those benefits. The measure of direct damage is the difference between the amount actually recovered or paid and the amount that should have been recovered or paid. The measure of direct damages can also include punitive damages that were not recovered or imposed. The direct damage may be the value of a lost settlement opportunity or the cost of a disadvantageous settlement. Additional elements of direct damage can be the legal fees paid to the defendant attorney and expenses incurred to mitigate the loss of the intended benefit.
Consequential damages are compensation for those additional injuries that are a result of the attorney's negligence, but to do not flow directly from or concern the objective of the attorney-client relationship. In other words, a consequential injury is not the loss of the intended benefit of the attorney's services but damages that occurred because the benefit was lost. Such injuries may include damages for mental distress and related personal injuries, injuries to reputation, economic losses, and expenses incurred in suing that attorney for legal malpractice.
Conclusion
To prove a case of legal malpractice, you must prove: there was a lawyer-client relationship, your lawyer was negligent or at fault in the handling of your case, and the lawyer's negligence was the cause of your injury, damage or loss. Various aspects of a given fact situation must be evaluated by an attorney before an action for legal malpractice can properly be started. A lawyer with experience in this area can give you sound advice on these complex issues.