When you hire an attorney, you want professional, competent representation – and that is generally what you’ll receive. Win or lose, most attorneys do their jobs quite well.
When things don’t go your way, however, it’s easy to assume that malpractice is somehow involved, especially if you have certain expectations going into a case that aren’t fulfilled. The truth can be very complicated. What exactly constitutes legal malpractice isn’t always easy to understand, and misconceptions abound. Here are some of the most common mistaken beliefs about legal malpractice:
1. Losing your case means legal malpractice.
One of the most common misunderstandings is that if your lawyer loses your case, you automatically have a malpractice claim. That simply isn’t true. Attorneys can do everything right – from researching the law, preparing evidence and presenting strong arguments – and still lose a case because of unfavorable facts, strict laws or the court’s decisions. Malpractice requires proof that the lawyer’s specific conduct – not just a bad outcome – caused the harm.
2. Any mistake by an attorney counts as malpractice.
An attorney may actually have made a mistake in the course of a case or a trial, but the mistake could be largely inconsequential. A lawyer might misspell a client’s name in a document or misstate a date during a conversation – errors that may be inconvenient, but don’t necessarily harm the client’s case. They may also choose not to call a problematic witness or pursue a certain legal avenue that might have proved valuable. That’s merely poor strategy, however, not malpractice. Malpractice requires proving that the attorney’s error fell below the professional standard of care and that the mistake caused measurable harm to the case.
3. Ethics violations always equal malpractice.
Some attorneys do fail to uphold the standards required by their profession. However, ethics rules are enforced by the state bar and may result in disciplinary action against the lawyer, such as suspension or disbarment. Malpractice, however, is a civil lawsuit focused on whether the lawyer’s negligence caused damages. The two can overlap, but they are not the same thing.
4. Suing for legal malpractice is a straightforward, easy process.
Legal malpractice cases are some of the most complex lawsuits you can bring. A client must not only prove their attorney’s negligence but also prove what is called the “case within a case.” This means you must show that, were it not for your lawyer’s mistake, you would have won or received a better result in your underlying case. These claims generally require a lot of expert testimony and detailed analysis, which can make them very hard to pursue.
5. Any lawyer can handle a legal malpractice case.
Malpractice law is a very specific, unique area, and not every attorney handles these claims. You need a lawyer who specifically handles legal malpractice claims so that you have someone on your side who understands the unique burdens of proof that your claim is under and the practical realities involved.
If you believe your attorney committed malpractice, the best step is to consult with an attorney who focuses on these claims.