Legal Malpractice Part 1: What is Legal Malpractice?

Posted on Tue Feb 25 2014 by Vincent Jesuele

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Over the next few articles, we’ll be exploring the subject of legal malpractice. We’ll look at some examples of legal malpractice cases, discuss what is needed to prove a legal malpractice case, and examine some issues particular to legal malpractice cases. But first, what is legal malpractice?

Legal malpractice occurs when a lawyer harms their client, either deliberately or by making errors that no reasonable attorney would make. In legal-speak, malpractice is a deviation from standards of practice of the legal profession, when an attorney fails to demonstrate the level of care and skill of an ordinary practitioner.

Legal malpractice doesn’t just mean that your lawyer lost your case or didn’t get you as much money as you think you deserved. Even if your lawyer made a mistake in handling your case, they may not have committed malpractice if they were acting in good faith. You must prove that your attorney made a serious error in judgment, was negligent, or intended to harm you.

In addition, you must prove that your lawyer’s actions directly caused you to suffer damages. If your lawyer’s mistake did not change the outcome of your case, then they cannot be held responsible for legal malpractice. In other words, “No harm, no foul.”

For example, imagine that you’ve broken your arm in a car accident and you’ve hired an attorney to sue the other driver. Your lawyer forgets about your case and fails to file suit before the statue of limitations elapses. Under the law, you’ve missed your chance to sue the other driver.

Your lawyer has certainly failed to demonstrate the level of care and skill of an ordinary attorney, so you should be able to win a malpractice suit against them, right?

Maybe not. Suppose that you chose the verbal threshold option on your car insurance policy. Roughly, the verbal threshold requires your injuries to be permanent in order for you to receive payment for them, and your broken arm fully healed long ago. Even if your lawyer hadn’t missed the statute of limitations, you wouldn’t have been able to win your case, so you won’t be able to win a legal malpractice case against your lawyer, either.

In future articles in this series, we’ll discuss several examples in which legal malpractice has or has not occurred. We’ll also take a more detailed look at the elements of malpractice, as well as what a plaintiff must prove to win a malpractice case. Finally, we’ll explore some issues and recent developments specific to legal malpractice cases. Stay tuned!

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