Proving that legal malpractice occurred because of an attorney’s negligent work on a lawsuit can be tricky. Anyone with questions should seek advice from seasoned legal malpractice counsel.
If the previous lawyer was negligent in conducting litigation, causing unfavorable results for their client and actual losses, a legal malpractice lawsuit may provide a remedy. A malpractice claim usually requires representation by a skilled legal malpractice attorney because of the complexity of establishing the required elements.
Case-within-a-case
Legal malpractice or lawyer negligence occurs when an attorney fails to exercise the duty of reasonable care to their client to which the average lawyer adheres in the same kind of representation. To prove malpractice, a breach of the duty of care during the litigation must have harmed the client or caused them some kind of financial loss.
Recoverable loss could occur by losing a trial or recovering less (or owing more) than the party would have without the malpractice.
When the alleged malpractice occurs in the litigation context, the court hearing the later legal negligence claim may face complicated and difficult questions about what would or should have happened in the earlier case. The malpractice plaintiff must basically recreate the original trial for the malpractice judge or jury to show what mistakes or negligent actions the original lawyer made. This is conducting a case-, trial- or suit-within-a-suit.
Many potential scenarios of lawyer negligence
The number of possible situations throughout litigation in which an attorney could act negligently is endless and could happen before, during or after an actual trial. For example:
- Did counsel miss the filing deadline for a lawsuit?
- Were other deadlines missed such as for providing the other party with required notice and service of an answer, or for filing documents with the court?
- Did insufficient investigation of the original claim cause the lawyer to miss potentially responsible parties, causes of action or defenses?
- Was the pretrial discovery deficient to uncover important evidence?
- Did the lawyer fail to properly advise the client of the pros and cons of a settlement offer? Or did the attorney keep the settlement offer from the client altogether?
- Did legal counsel miss negotiation opportunities that could have led to a favorable settlement?
- Did prior counsel fail to prepare sufficiently for trial such as by incomplete legal research or substandard court pleadings?
- Did the lawyer agree to represent the client in an area of law that they were not familiar with, resulting in mistakes or mishandling?
- Were mistakes made in the courtroom like the failure to object to improper evidence or testimony? Or the failure to ask important questions of witnesses or to offer important written or tangible evidence?
- Did the attorney fail to present an expert witness where required or without which the factfinder would likely not understand all aspects of the case?
- Were motions missed like asking for a judgment notwithstanding a verdict?
- Did the lawyer miss requesting a new trial or filing an appeal on time?
- Were arguments missed on appeal?
Key takeaway
The bottom line is that swift consultation with an experienced legal malpractice attorney is crucial. Knowledgeable counsel can help determine whether the grounds for a malpractice case are there and take prompt steps to comply with filing deadlines.