If your attorney’s failures damage your case, you may consider filing a malpractice suit. The suit may offer you a chance to recover some of your damages, but there are two key considerations.
The first is to make sure you can prove your attorney was truly negligent or acted in bad faith. Strategic errors don’t count as malpractice. Instead, you need to show that your attorney failed to meet reasonable standards for the profession. And second? You need to show those failures led directly to real damages.
4 types of damages you might recover
If you don’t have real damages, you don’t have a legal malpractice case. This may be the story even if you can prove your attorney failed to meet deadlines and the minimum standards for competence. Instead, you need to prove that another attorney could have helped you secure a better result. This is the but for part of legal malpractice that often requires a trial-within-a-trial.
However, if you can meet this standard, California law allows you to recover any “detriment” resulting from an “unlawful act or omission.” These are your damages. So, what does this mean?
- As defined in Section 3282, a detriment is “a loss or harm suffered in person or property.”
- This means you may be able to claim the full value of your underlying claim. Or the difference between what you received and what you would have received with better representation.
- However, you need to show the damages meet a standard of legal certainty. You cannot recover speculative damages, such as you might want to claim if you reached a poor settlement due to your attorney’s poor representation.
- You may claim interest. Many legal malpractice cases involve large business deals, and the interest on the losses from poorly handled cases can add up quickly.
- You might claim emotional distress. If you can prove that the poor handling of your case caused undue stress or grief—outside of your financial concerns—you might claim these as detriments suffered in person.
- In rare cases, you might also receive punitive damages. Generally, courts only award punitive damages when the cases involve intentional malice, fraud or notably bad behavior. In short, the courts may award these damages if they feel they need to make an example of your attorney.
Do you have a legal malpractice case?
It’s often hard to recognize legal malpractice. Without an attorney’s negligence or malice, you may just have an unfavorable outcome. Without damages that meet the standard of legal certainty, you may simply have a complaint about your attorney’s ethics or conduct.
It’s only when you have both an unreasonable failure and proven damages that you have legal malpractice on your hands. It often takes an experienced attorney to recognize when both these elements can come together. But if that’s your situation, a legal malpractice claim may help you recover from your suffering and get you back on your feet.