Suing an Attorney for Malpractice is Harder Than You Think

Sue an AttorneyLegal malpractice cases are particularly difficult and expensive to pursue. Aside from the inherent difficulty in finding an attorney who accepts legal malpractice cases, the plaintiff essentially needs to prove two cases in order to win: (1) the malpractice case against the lawyer and (2) the underlying case in which the lawyer committed the malpractice (to show how the case would have resolved had malpractice not occurred). Sometimes, the malpractice will be glaringly obvious, such as a missed statute of limitations. Often, it will be more of a gray area, both as to whether malpractice occurred and whether it had any significant impact on the outcome of the case. Before you assume that you have a legal malpractice case against your attorney, consider the numerous obstacles you will need to overcome.

Legal Malpractice Attorneys Don’t Grow on Trees

While, in theory, any lawyer — particularly one in the same specialty as the lawyer you want to sue — could represent you in a legal malpractice case, in practice only lawyers who specifically advertise themselves as legal malpractice lawyers will usually consider accepting such a case. Undoubtedly, many lawyers won’t take these cases on general principle — they find the idea of suing another lawyer to be distasteful, or perhaps they fear that taking such a case would damage their social standing in the legal community. A similar problem arises in medical malpractice cases when trying to find an expert witness to testify against another local doctor. You may need to expand your search beyond your immediate geographical area to find a lawyer willing to discuss your malpractice case with you.

Aside from social stigma and personal aversion to suing another lawyer, the larger reason that legal malpractice attorneys are rare is that legal malpractice cases generally promise a lower return on the attorney’s efforts than other types of cases. Except in the most obvious malpractice cases, a lawyer must prove two cases at once to make the same recovery he could have made by just accepting a straightforward injury case without the legal malpractice baggage. Also, his costs will be higher, requiring him to risk more money out-of-pocket on the outcome of the case. For these simple reasons, only the most promising of legal malpractice cases will be considered by the few lawyers willing to practice in this area.

Legal Malpractice Cases Are Two Cases in One

In order to win a legal malpractice case, it is not enough to simply prove that your lawyer was negligent in the handling of your case. You also need to prove that, but for the attorney’s malpractice, you would have received a collectible judgment (or a larger judgment than you actually received) in the underlying case. This often requires substantial relitigation of the original case. You need to prove that a jury, hearing your original case as it should have been prepared and argued, would have found in your favor and awarded you more money than you actually received. You would be wrong to assume that merely proving your original lawyer’s neglect will establish that your case would have ended more favorably. There are errors that a lawyer can commit that amount to the proverbial tree falling in the woods — if they don’t affect the outcome of the case, they don’t count.

Even in the most obvious legal malpractice cases, such as a blown statute of limitations, a jury can rule against a plaintiff if it feels that the plaintiff would still have lost his original case were it timely filed. This likely isn’t an issue as long as your underlying case was strong from a liability standpoint, such as a rear-end collision. However, if your case could have resulted in a defense verdict, such as a medical malpractice case where the doctor denies wrongdoing, or a grocery store slip-and-fall where there is an issue as to whether the store should have reasonably discovered the dangerous condition that caused the fall, the hardest part of your case may begin after you’ve established your lawyer’s malpractice.

Legal Malpractice Cases Carry Added Costs

As with medical malpractice cases, legal malpractice cases will usually require the hiring of an expensive expert witness — another lawyer. Why does your legal malpractice lawyer need to hire another lawyer? First, legal malpractice lawyers are not experts in all areas of law. They will often need to consult with an outside expert just to establish in their own minds that your lawyer departed from the acceptable standard of care. Second, and more importantly, you’ll need someone to testify about your lawyer not meeting the standard of care. Your legal malpractice lawyer isn’t going to take the stand and question himself. Even if he could, do you think a jury would believe someone whose income depends on the outcome of the case? While outside experts are hardly impartial, at least they get paid whether you win, lose or draw.

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The added cost of a legal malpractice case is a large deterrent to attorneys accepting cases that don’t promise a substantial recovery. There is no point to bringing a legal malpractice case if the amount recovered will only cover your attorney’s fees and costs.

Suing an Attorney for Recovering Less Than Your Case Was Worth

Often, legal malpractice cases arise from a case where the original lawyer recovered some money for the plaintiff, either through settlement or a judgment, but the plaintiff claims that he would have recovered more if the attorney had not been negligent. States vary on what needs to be proven in order to sue a lawyer for malpractice after a settlement is reached (there are concerns that “buyer’s remorse” would lead to an unacceptable number of frivolous malpractice cases if every client unhappy with an agreed-upon settlement could sue his lawyer), but the various legal obstacles to bringing a malpractice case after settlement are joined by what may be an even greater obstacle — the fact that you are suing for less than the full value of the underlying case.

Once again, the practicality of bringing a legal malpractice case is highly dependent on the potential recovery. The difference between what you actually recovered and what you should have recovered needs to be significant in order to justify a lawyer risking the added expense and time involved in bringing a malpractice case. While I have no doubt that there are plenty of $15,000.00 cases being settled for $10,000.00 due to lawyers’ lack of diligence, no malpractice lawyer in his right mind would ever consider taking on such a case. It’s just not good business.

While a settlement will not act as an absolute bar to you suing a lawyer for malpractice in most states under most conditions, it may act as a de facto bar to you finding a lawyer willing to take on such a case, unless your former lawyer left a lot of money on the table.

It’s Not Legal Malpractice if You Can’t Prove That it Affected the Outcome of Your Case

Lawyers engage in lots of less-than-professional behavior. We don’t return client phone calls. We don’t move cases along as quickly as we should. We miss objections that we should make. Most of these acts, while far from laudable, won’t be enough to support a malpractice lawsuit.

For example, most lawyers would agree that it is important and required by the relevant standard of care to meet with and prep a client for his deposition. But, what if a lawyer doesn’t and the client just shows up cold to his deposition? That’s pretty bad, right? That’s got to be malpractice — or does it? Considering that a deposition is really just the client truthfully answering questions under oath, what would have changed if the lawyer had prepped the client? Certainly, the client would have felt more comfortable with the process, but would his answers have changed to a significant degree? These are the hard questions that need to be asked when considering whether your lawyer committed malpractice.

It’s not enough that you “just know” that something your lawyer did wrong affected the outcome of your case. You need to be able to prove it. If you think your lawyer should have tracked down a possible witness in your case, it’s not enough to assume that this witness would have changed the outcome. You need to actually find that person, learn what he would have said under oath, and prove that this testimony would have been significant enough to get you more money (or avoid a judgment for the defense).

Legal Malpractice for Failure to Warn of the Consequences of Losing Your Case

There is no doubt that losing a lawsuit, whether by summary judgment, directed verdict or jury verdict, can have serious negative consequences for plaintiffs. You can be held liable for the defendant’s costs, and in some cases, his attorney’s fees. Without a doubt, attorneys should inform their clients of these consequences at a time when the client can still avoid them by either settling or dropping the case. However, even in the case of such an egregious omission being made, for it to actionable malpractice you need to be able to state truthfully that had you known of the potential bad outcomes, you would have either settled or dropped your case. For most clients, this simply isn’t true, and they would have taken the risk regardless of the possible consequences. That’s not to say that they don’t have the right to be angry with their lawyers for not keeping them informed. It just means that they don’t have grounds for a malpractice case if they would have taken the risk anyway.

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Things That Are More Likely to Support a Legal Malpractice Claim

While I’ve written at length about how generally awful and difficult legal malpractice cases are, it should be noted that some cases are easier than others. As already noted, a lawyer missing the statute of limitations is the legal malpractice equivalent to a surgeon leaving an instrument inside a patient after surgery. It’s obviously negligent, and now you just have to prove that you would have won your underlying case to have a strong malpractice claim, making it more like one lawsuit than two. Note that this statute of limitations issue also applies to cases where a lawsuit was filed, but the lawyer failed to timely allege additional legal grounds (e.g., negligence and strict liability) which would have won the case for you.

A lawyer failing to respond to a summary judgment motion, resulting in that motion being granted, tends to be malpractice — though you still need to show that you would have defeated the motion had a timely response been filed. A lawyer failing to respond to a Request for Admissions, resulting in you being deemed as admitting things that you would have denied, is likely malpractice. Failure to timely disclose an expert witness in accordance with a court order, resulting in your expert’s testimony being barred, tends to be malpractice. Committing repeated discovery violations that results in key evidence being excluded is likely malpractice. As you can see, it takes some pretty egregious conduct to make for a likely malpractice case. That’s not to say that there aren’t innumerable other behaviors which might constitute malpractice, but these are a few which would tend to have a severe and obvious negative affect on a case.

It’s Not Legal Malpractice Until the Case is Over

Not every bad thing that happens in your case is your attorney’s fault. Trial court judges issue bad rulings that could end or damage plaintiffs’ cases every day. That is what appellate courts are for. So, before jumping to the conclusion that your lawyer committed malpractice, consider whether you are the victim of a bad ruling by the trial judge — one that can be overturned on appeal. You don’t want to fire your lawyer and accuse him of malpractice if he represents your best chance of setting things right on appeal (and he may not have caused the bad outcome to begin with).

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The worst thing you can do is fire your lawyer, find yourself unable to find another lawyer to take the appeal, watch the appeal deadline lapse, and then find out that your lawyer didn’t commit malpractice and, in fact, would likely have won on appeal. Be sure that your loss is final before assuming that your malpractice case is secured. It’s far easier to win your original case than to make a recovery on it through a legal malpractice lawsuit.

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