Legal Malpractice Information Center

Legal Malpractice - An Overview

A variety of major life events can call for the assistance of a lawyer: adoption, divorce, serious accidents, business transactions and estate planning, to name a few. In most cases, the lawyer's help makes the process move more smoothly and provides confidence in the outcome. Sometimes, however, the lawyer fails to follow through or makes a serious error in conducting the case. When this leads to a poor outcome, the client may have a claim against the lawyer for legal malpractice. If you believe that your lawyer committed malpractice, contact a new lawyer to find out what your legal remedies are.

Elements of a Legal Malpractice Claim

A lawsuit for legal malpractice can be complex. In most cases, the plaintiff needs to show:

• The plaintiff and the defendant (the original attorney) shared an attorney-client relationship
• The defendant acted (or failed to act) in violation of a duty owed to the client
• The client would have met with greater success if the defendant had not violated the duty to the client
• The defendant's action (or inaction) is responsible for the injury to the client; the injury can include losing the case or suffering financially in a business transaction
• If the client's case had succeeded, the client would have been able to collect any monetary judgment or award

The attorney's mistake must have caused the client a significant loss. A smaller mistake, which may have caused inconvenience but did not affect the outcome of the case, is usually not grounds for a legal malpractice claim.

Damages in a Legal Malpractice Claim

In a civil lawsuit, damages are money the defendant may be ordered to pay as compensation for the plaintiff's loss or injury. When the plaintiff's lawsuit is successful, the monetary compensation the plaintiff receives depends on the facts of the case and the court in which the claim was brought.

The available damages in a legal malpractice case are dependent on both state law and what happened in the original matter, the one that the attorney/defendant is accused of mishandling. Typically, the damages in the malpractice lawsuit will be based on what the plaintiff would have won in the original case if the attorney had not been negligent. The plaintiff usually cannot recover damages for emotional distress caused by the economic loss.

Some of the basic rules concerning damages in legal malpractice are:

• If you would have won compensatory damages — money that pays for your loss, like your totaled car and your injuries in an auto accident — as the plaintiff in a civil lawsuit, but your attorney's negligence caused you to lose the suit, you may be able to collect that amount from the attorney. On the other hand, if you were a defendant in a civil suit, and your attorney's negligence caused a judgment ordering you to pay the plaintiff, you may be able to collect that amount from the attorney.
• Sometimes, courts award punitive damages to plaintiffs. Punitive damages are awarded when the defendant is found to have acted with serious recklessness or malice. In some jurisdictions, if you would have won punitive damages in your original case had the attorney not been negligent, you may be able to collect these damages from the attorney in your lawsuit for legal malpractice.
• You may be able to recover the expenses and legal fees that you paid in order to correct the problems caused by the negligent attorney.
• Attorney's fees that you still owe the original attorney may be deducted from the damages that you win. This depends on the court and the type of work the original attorney did on your case.
• You also may be able to recover the market value of lost property (but not the property itself) if the legal malpractice caused the loss of the property.

Attorney's Responsibility for the Acts of Others

The associates, secretaries and law clerks who work with attorneys may be in charge of important matters like drafting documents and filing papers with the court. When they fail to follow through, serious implications may arise. The attorney who employs these workers is ultimately responsible for their acts that are in the scope of their employment. If the attorney is part of a large firm or corporation, the firm or corporation is likely to be responsible.

Pursuing Your Claim

Legal malpractice can occur in a variety of circumstances. Bringing a lawsuit against any professional is challenging, but a legal malpractice claim can be especially difficult to prove. An experienced attorney can help you evaluate and build your case.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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