You lost your legal case and you are angry. After all, the progress of your case took years while legal costs mounted and now you may have to pay court costs, too. Who is to blame? Was your case really not strong or did your lawyer handle everything incorrectly?
You may feel that your attorney did not perform well and question why he or she should be paid when you did not win. You may consider suing the lawyer for malpractice. While it is true that some lawyers commit malpractice by not adequately representing their clients, proving a legal malpractice case can be extremely difficult. It is hard for a client to knowledgeably and objectively judge whether the attorney’s performance was appropriate or negligent.
Ordinary Skill and Care
Lawyers are required and expected to use the ordinary skill and care used by other lawyers in handling similar cases under similar circumstances. So, you have to show that your lawyer’s performance was extraordinarily wrong in some way—the fact that your case was lost is not sufficient proof by itself.
To prove a malpractice case against an attorney, you must demonstrate:
- An attorney-client relationship existed
- The attorney made negligent errors in his or her presentation
- The attorney’s errors caused you to lose a case you otherwise would not have lost
- What the loss cost you, such as damages from the opposing party
Errors and Negligence
There are several ways in which an attorney may be negligent. One of the most common allegations against lawyers in malpractice actions is conflict of interest. Attorney conflict of interest occurs when the lawyer’s representation of the client is materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person. If your lawyer engaged in such conflicts, he or she breached a fiduciary duty to you.
Other common complaints of malpractice include:
- Failing to file a lawsuit before the applicable statute of limitations expires
- Missing other important deadlines
- Inadequate preparation for trial
- Not following court orders
- Sexual coercion or pressure
- Lying about important case details
- Not notifying the client of settlement offers
- Settling a case for less than it was worth and without the client’s approval
- Inappropriate use of the client’s money
Weigh Your Odds Before Suing
Suing your lawyer could mean entering into another protracted legal process as you wait for your case to progress through court, discovery, mediation or arbitration, and perhaps a trial. Even if your attorney is found to have made some errors, his or her representation may not prove to be the cause of you losing your case. These risks are not presented to discourage you from bringing action against your attorney, but to impress upon you the importance of your seriously weighing the facts and circumstances of what happened and the likelihood of your proving your case.
Take time to review all the events of your case. Go over every document filed and all evidence presented. Consider how your lawyer treated you: Was he or she available when you called? Did he or she give you regular updates on the progress of your case? Were you well informed on the legal strategy applied? Notified of court and hearing dates?
Meet with an attorney experienced in handling legal malpractice cases and share your thoughts with him or her. Together you can determine whether your previous attorney performed well under the circumstances and deserves to be sued. The lawyers at the Brod Law Firm have successfully helped clients in legal malpractice matters involving complex business litigation, divorce, real estate transactions, immigration, and personal injury cases. Call 800-427-7020 today for a free consultation. We have offices in San Francisco, Oakland, and Santa Rosa (Sonoma).