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Frequently Asked Questions
Legal Malpractice
What is legal malpractice?
Malpractice is a word that describes negligence by a professional person. In rendering legal services for a client, a lawyer must be competent. To be competent, a lawyer has an obligation to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise under similar circumstances. This is called the "standard of care." When a lawyer's services fall below the standard of care, it is called "legal malpractice."
Does every mistake made by a lawyer constitute legal malpractice?
No. First, the mistake must have been one that a lawyer of ordinary skill, prudence, and diligence would not have made. Second, the mistake must have caused harm.
How is harm defined?
Injury or harm in a legal malpractice case requires that the client suffered a tangible, financial loss or a wrongful criminal conviction. Some examples are loss of the right to file a lawsuit, dismissal of a valid lawsuit, and losing a case that should have been won. Nominal damages, speculative harm, or the threat of possible future harm do not constitute an "injury" in legal malpractice cases.
Can damages be recovered if legal malpractice caused emotional distress?
Generally, damages are not recoverable for emotional distress. However, there are a few exceptions, including emotional distress caused by a lawyer's fraud, or breach of fiduciary duties, or being wrongfully convicted and jailed because of a lawyer's negligence.
How does one prove that the malpractice caused harm?
If the former case had no merit, a lawyer's negligence will not turn the former case into a winner. To prove that there would have been a different result if the case had been properly prosecuted or defended, the plaintiff in a malpractice case will be given the opportunity to "retry" the former case . This "re-trial" is accomplished by presenting the evidence that should have been proved in the former case to the judge or jury that is deciding the legal malpractice case. The judge or jury then decides whether the evidence would have resulted in a better outcome. However, even if the outcome might have been better, it must be proved that the verdict would have been collectible from the former defendant.
Why must collectibility be proven?
Even if there were admitted negligence in the former case that would have resulted in a jury verdict for a million dollars, no damages can be collected from the negligent lawyer if no damages could have been collected from the former defendant. For example, a lawyer's negligence resulting in the loss of the plaintiff's right to sue an insolvent, uninsured, and unemployed driver would not cause the plaintiff any damage, since no money would have been collected from the negligent driver, even if the case had been prosecuted to judgment.
Is it malpractice if a lawyer's tactical or strategic decisions are unsuccessful?
An attorney's exercise of judgment is not negligence unless the judgment falls below the standard of care. For example, during trial, it is generally accepted that the choice of what witnesses to call, what evidence to introduce, and whether or not to cross examine a witness, are exercises of judgment. Nevertheless, if a tactical decision was foolish, ill-considered, or unduly risky, it may be found to have been negligent if the attorney's strategy was not based on informed judgment. As one court once said, "There is nothing strategic or tactical about ignorance."
If a judge disagrees with a lawyer's interpretation of the law, has the lawyer been negligent?
Not necessarily. First, the judge's interpretation may be incorrect. Second, in giving advice, an attorney will not be held liable for failing to anticipate the manner in which a debatable point of law will be resolved, so long as the advice given was based on an intelligent assessment of the problem after reasonable research was performed. However, bad advice that is given without adequate research is negligent.
Are expert witnesses necessary to prove a legal malpractice case?
In legal malpractice cases, an expert witness is a lawyer who is knowledgeable about the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly possess and exercise under similar circumstances. The expert witness must testify that the lawyer being sued for malpractice did not measure up to the standard of care required of him or her. In most cases, if this point is not proven with expert testimony, the malpractice lawsuit will be dismissed by the court. As a witness, the expert's task goes far beyond the conclusion that the defendant-lawyer did or did not fall below the standard of care; he or she must lay the foundation for the jurors to be able to understand the language of the law and the reasons why actions must be taken or avoided.
What should I do if I suspect that my lawyer committed legal malpractice?
Depending on the situation, you should (1) discuss the problem with your attorney, (2) obtain your file, and/or (3) consult an attorney who specializes in legal malpractice cases.
- 1. Discuss the Problem with your Attorney: If you suspect that your attorney has caused a problem in your case or gave advice that caused a problem in a non-litigation matter, you should immediately make an appointment to discuss the matter with him. Prepare for the meeting by writing down all of the questions and concerns that you have. At the meeting, give your attorney the opportunity to explain what happened. Ask questions if you want further information. If, for example, your case was dismissed by the court, ask your attorney why and how it occurred. Ask for copies of all of the papers that were filed with the court that led up to the dismissal, and ask your attorney to explain them to you. If you believe, after you have discussed the problems in your case, that your attorney did something wrong, you should obtain your file.
- 2. Obtain your File: If the case is over, you have the right to your original file from your attorney. The only documents that the attorney has the right to withhold are those that reflect the attorney's thought processes, such as internal memos. If the case is not over, you should ask for a copy of all pleadings and discovery documents. The attorney has a right to make a copy to keep, at his or her own expense, and not yours. Even if you owe the attorney money for fees or costs, the file must be given to you; delivery cannot be conditioned on your payment.
- 3. Consult a Legal Malpractice Attorney: The only way to find out if you have a legal malpractice case is to consult an attorney. The law governing legal malpractice cases is complex, and it is best if the attorney has experience in the field. For the appointment, you should bring the file you obtained from your former attorney, as well as all papers and documents you gave the attorney or received from him or her. You should ask a prospective attorney about his or her experience: How many legal malpractice cases have they handled; how many have they taken to trial; have they written any articles or lectured on the subject. Don't be afraid to interview more than one attorney. What is important is that you are confident in the attorney's ability and comfortable talking with him or her.
What will a legal malpractice case cost?
Legal malpractice cases are generally complicated. This is not to say that early settlements never happen; however it is far more likely that a lawsuit will have to be filed and many hours devoted to the "discovery" process. A rule of thumb is that the legal malpractice case will be at least as costly as the former case, and probably more costly. The reason is that many legal malpractice cases require that two cases be proved: one case involves whether the attorney committed malpractice, and the other case involves the presentation of the former case. This is called "a case within a case," and can require nearly twice as much work as a single case. Consequently, the fees and costs can be significant.
- 1. Fees: Some cases lend themselves to a contingency fee, while others might require hourly fees, or a combination of the two. If, for example, the former case was a personal injury matter that was handled on a contingency, then it is most likely that the legal malpractice case would be handled on a contingency. However, because of the complexity of the case, the contingency fee might be higher; typical fees range from one-third to 49% of the recovery. If the fees in the former case were hourly, then the legal malpractice attorney and the client might agree on either a contingent fee, an hourly fee, or a combination of the two; e.g., $250 per hour plus 20% of the recovery.
- 2. Costs: The amount of the costs will depend on the type of case involved. For example, if the former case was for medical malpractice, then all of the costs that would have been required in the medical malpractice case will have to be spent in the legal malpractice case, since the former case must be proved. Typically, these costs exceed $30,000 and might amount to $100,000. If, however, the former matter would not have required numerous witnesses and experts, then the costs of the legal malpractice case would be incurred for expert witnesses. Even in a relatively uncomplicated case, it would not be unusual for there to be a cost of $25,000 to take the case through trial. Depending on the type of case, the legal malpractice attorney might agree to advance all costs, or, alternatively, require that the client advance all costs.
How long do I have to file a legal malpractice case?
An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury; (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and (4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action. (b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of such act or event. [California Code of Civil Procedure 340.6.]
Because the interpretation of the law governing when a legal malpractice lawsuit must be filed is complex, it is imperative that the client consult a legal malpractice attorney as soon as he or she suspects that their attorney caused a problem. If the case is not filed within the time required by law, any right that the client has to sue their attorney will be lost.
Articles by John P. Blumberg:
Is it Really Legal Malpractice?
Pitfalls of the Legal Malpractice Lawsuit
The Legal Malpractice Expert Witness
Settlement Malpractice: The Duty to Give Advice
Legal Malpractice: Did the Statute Really Expire?
Legal Malpractice: What it is, What it isn't, and How to Prosecute it