Of course, many lawyers choose to be litigators whose main professional focus is to bring lawsuits seeking recovery for clients’ injuries or financial losses, or to otherwise resolve conflicts. Litigators also defend clients in court whom others have sued.
Litigation malpractice
Unfortunately, sometimes a lawyer breaches their duty of care in conducting litigation and the negligent or reckless behavior harms the client. One major area of legal malpractice in litigation is the failure to adequately investigate the underlying facts of the matter, including conducting proper, often crucial, discovery.
What is discovery?
Discovery is the official process used to prepare for trial in which each party to a lawsuit initiates investigative processes to uncover the events, evidence and circumstances relevant to the conflict. For example, in discovery, a party can take depositions (ask questions of witnesses under oath), present interrogatories (written questions), ask for admissions, or request documents or other items from the other side.
Neglecting the reasonable duty to investigate a client’s legal claim
A lawyer who agrees to take on a client’s case has the duty to timely investigate the underlying facts to discover whether enough evidence of potential liability exists to file a lawsuit before any deadlines to do so pass. Failure to conduct adequate, reasonable pretrial investigation that causes the client harm, such as when the lawyer fails to uncover evidence that would have supported a lawsuit (or provided a defense) as a result, breaches the duty of care.
Similarly, once a party files a lawsuit, lawyers for both sides have the reasonable duty to investigate through formal discovery. Discovery involves specific procedures, notices, deadlines and compliance with court rules. It requires an attorney to pay attention to potentially complex scheduling and preparation. Legal counsel must continually analyze the developing evidence to understand what other evidence they must seek for the case.
Types of harm from inadequate discovery
The kinds of potential harm to a client from an attorney’s breach of the duty of care to reasonably investigate and conduct discovery are limitless. Here are some examples:
- Failure to uncover important evidence could force a client to settle for less (or more) than the case is worth.
- Failure to discover evidence that would support a defense could result in unnecessary liability or higher damage liability to a defendant-client.
- Failure to uncover an important witness could potentially lead a jury to a different verdict than they would have with the witness’ testimony.
- Lack of knowledge of evidence strong for the other side might have led to a decision to settle early on, not to file or to dismiss the case. Instead, the client might face liability for an expensive damage award in court.
- The case could be dismissed for noncompliance with discovery rules or for other reasons related to the inadequacy of evidence when relevant facts would have been uncovered with reasonable investigation.
- The lawyer could fail to uncover other possibly liable parties or evidence that would have supported additional legal claims.
Anyone who believes they were harmed by an attorney’s failure to reasonably investigate or engage in discovery should seek information and guidance from an experienced legal malpractice lawyer about potential legal remedies.