We all have the capacity to make mistakes in our jobs -- even attorneys. When does that error rise to the level of legal malpractice?
Several factors go into determining whether a client should sue a lawyer for malpractice. They start with three basics.
The first is negligence. It's easy in hindsight to see that an attorney could have made a mistake in a case, but that doesn't mean negligence occurred. Instead, we need to consider the circumstances under which a legal decision was made and consider whether it violated an attorney's standard duty of care. Not every error is a violation.
Elements of negligence can include a number of acts, such as inadequate knowledge of the law, errors in drafting documents, conflicts of interest and suing the wrong party.
Next, it must be determined whether the mistake caused damage. For example, did an attorney fail to file a lawsuit before the expiration of the statute of limitations? While that's certainly an error, there is no guarantee it would have been a winning case. To be considered legal malpractice, there must be a legal certainty the case would have resulted in a win -- and the ability to prove how much money the client lost -- for this to rise to legal malpractice.
Finally, are the damages significant enough to pursue a case? Elements of legal malpractice also can include acts such as inadequate knowledge of the law; errors in drafting documents; conflicts of interest; and suing the wrong party.
This is just a primer on legal malpractice and is no substitute for a consultation with another attorney who can listen to your situation and determine whether it would be wise to pursue a case.