Yes. Failing to raise a key defense can lead to a legal malpractice claim in California when the omission falls below the expected professional standard and causes actual financial harm. However, failure alone does not establish malpractice. The defense must have mattered to the underlying case, and the error must have contributed to the client’s loss.
When can failing to raise a defense matter?
A lawyer must use the skill and care that reasonably careful legal professionals would use in similar circumstances. If counsel overlooks a defense that could materially affect a civil case, that failure may raise concerns about professional negligence.
For example, a defense may limit liability, reduce damages or prevent a claim from succeeding. The strength of the defense, the facts available to the legal representative and the stage of the case can all affect the analysis. The next question involves the effect of the omission.
What must the client show?
A client generally must establish more than a failure to make an argument. The client must connect the professional’s conduct to a measurable loss.
Important factors may include:
- Whether the defense applied to the facts of the case
- Whether a reasonably careful lawyer would have identified it
- Whether the defense could have been raised at that stage
- Whether the court could have considered it
- Whether raising it could have changed the outcome
- Whether the client suffered actual financial damages
California courts generally require a legal malpractice plaintiff to show that negligence caused a worse result than the client would have received without the error. The underlying case therefore remains important.
Why the outcome matters
California law requires a connection between the professional’s conduct and the claimed damages. A client does not establish malpractice simply because another lawyer might have used a different defense or because the case ended unfavorably.
The omitted defense must have had a meaningful effect on the result. In a civil case involving substantial financial stakes, that analysis may require examining what likely would have happened if counsel had properly raised the defense.
Failing to raise a key defense can become malpractice when the omission falls below professional standards and causes provable financial harm. Examining both the missed defense and its effect on the underlying case helps distinguish a serious error from a difference in litigation strategy.