Legal malpractice and the “trial within a trial”

Here’s the truth: Negligent attorneys can cause real harm. An attorney’s negligence may cause you to lose a big-dollar business dispute, accept a crummy injury settlement or spend time in jail. If so, you might find some compensation through a legal malpractice suit.

But legal malpractice claims are notoriously tricky. Among other things, you need to prove that your attorney’s failures were responsible for your damages. This can mean proving you would have won if you had simply worked with a more responsible lawyer. In other words, you might have to revisit the original case with a “trial within a trial.”

Winning two cases at the same time

Lawyers can hurt your case in many ways. They can make any number of mistakes or bad decisions. But in a malpractice claim, it’s your responsibility to show what those mistakes or decisions may have cost you. Did they cause you to lose thousands, tens of thousands or millions of dollars? Or nothing?

The damages you suffered as a result of your attorney’s negligence are as much a part of your malpractice claim as the negligence, itself. As a result, legal malpractice cases often revisit their underlying cases, and it’s up to you to prove you would have won if you’d had better representation.

Assuming you were the plaintiff in the original civil case, here’s what happens:

  • You and your new attorney revisit the underlying case and make all the arguments you should have made the first time around
  • Your former attorney flips sides and argues that case as the defendant
  • The jury weighs the evidence and reaches a decision on the original case
  • You prove that the original defendant would have been able to pay the amount of your judgment

In some cases, you might present expert testimony rather than retrying the original case. An expert may testify both to the likelihood that you would have won the original case as well as the amount you would have likely received in a verdict.

Legal malpractice cases demand thorough preparation

There are plenty of times when it’s easy to prove your attorney had been negligent. Perhaps your attorney failed to file important documents on time. Or never disclosed a possible settlement. Or didn’t tell you about a clear conflict of interest. But proving your former attorney’s negligence is only one part of the equation.

When you file a legal malpractice claim, you want to work with someone who understands what it takes to win at trial. Because, in many cases, you can find yourself having to win two trials at the same time.

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