How might my former attorney fight a malpractice claim?

If an attorney’s substandard performance hurt your legal case and caused you real damage, you may have a malpractice claim. But having a claim isn’t the only factor you’ll want to consider when you decide whether to file. You’ll also want to consider the strength of your claim.

The truth is that legal malpractice claims can be tricky. In many ways, they’re twice as complicated as normal cases. This is because they have two parts: You need to prove your attorney failed to meet reasonable standards, and you need to show you would have secured a better result if not for your attorney’s failures. And then? Then you’ll want to anticipate your former attorney’s likely defenses.

7 possible defenses to overcome

The strength of your claim depends largely upon your ability to overcome any possible defense. To that end, it’s worth understanding some of your former attorney’s possible defenses. While legal malpractice can be complicated, we’ll focus for now on seven possible defenses:

  • Statute of limitations. California law says that legal malpractice claims must be filed within one year of discovering the damages or four years of the wrongdoing. There are some situations which may “toll” – or extend – these limits, but your failure to file on time can completely nullify your case.
  • Terms of engagement. The California Rules of Professional Conduct allow attorneys to limit the scope of their service so long as those limitations are lawful, reasonable and approved by the client. Attorneys often use their letters of engagement to define the scope of their service, and they may try to argue that any so-called failures lie outside the terms of their service.
  • Standard of care. The California Court of Appeals has previously established that attorneys owe a reasonable standard of care as a matter of law, rather than fact. However, this standard isn’t always the same. If an attorney claims to specialize in a practice area, he or she may need to meet the higher standard set for all specialists in that area. An attorney may challenge a client’s expectation of this higher standard of care.
  • Breach of duty. The expectation of reasonable care is a matter of law, but the failure to uphold that standard is a question of fact. While you need to present evidence to support your claim that your attorney failed you, your attorney may try to counter your claim with evidence of his or her own.
  • The underlying claim. As noted above, you must show both that your attorney failed to meet a reasonable standard of care and that the failure resulted in harm to your case. This often means retrying the underlying claim to show you would have won if not for your attorney’s failures. In this trial-within-a-trial, your former attorney can take the opposing view and argue the case against you.
  • Valuing the damages. If you win a legal malpractice claim, you might recover the real damages you suffered. Your former attorney may try to argue the damages were not recoverable, or that they weren’t as severe as you claim.
  • Shared fault. Your former attorney may argue that you were also at fault. If you took actions—or failed to take certain actions—that harmed your case, your attorney may limit his or her liability. Because California measures comparative liability, as the California Supreme court noted in KIRSCH v. DURYEA, this could reduce your compensation.

It’s important to note this is not a comprehensive list of possible defenses. However, it illustrates the many ways an attorney might attempt to thwart, defeat or devalue your claim.

How strong is my legal malpractice claim?

Legal malpractice cases are rarely simple. There are many factors at play, and these can impact the strength and value of a claim. You don’t want to file and dive into lengthy legal proceedings if you don’t have a strong claim. So, if you hope to recover your damages through a legal malpractice claim, it’s generally wise to review it with an attorney who has a history of success with legal malpractice cases.

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