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How do you distinguish between mistakes and malpractice?

Everyone makes mistakes, even lawyers like you. In some cases, mistakes are easy to shrug off, but in other cases, those mistakes may have consequences.

The American Bar Association describes malpractice as negligence that results in damages. How does that differ from a mistake?

Negligence as a deciding factor

It is easy to determine your mistake after the fact. Once your client has an outcome that he or she did not like, it is easy to see where it went wrong. This does not necessarily mean that you were negligent, however. Did the decision seem reasonable when you made it? He or she has to prove that it was an obvious mistake, not one that you can see in hindsight.

Damages as a factor

To be able to file a malpractice lawsuit, there must be damages associated. Fixable mistakes are rarely malpractice. However, if you forget to file a lawsuit before the statute of limitations expires, you ruined any chance that the person had to win the case. However, this does not mean that the court will find you guilty of malpractice as opposed to you having made a mistake.

The plaintiff must prove that he or she would have won the case with legal certainty. He or she also has to prove the cost of the damages.

Since the plaintiff has to prove that your conduct was below the standard of care, he or she will need to have suffered damages that make the litigation worth it.

Sometimes mistakes do not rise to malpractice levels but you need to be prepared if they do.