When you reach the point of needing an attorney's expertise, it usually means that some situation -- whether at work, in the neighborhood, with the family, or elsewhere -- has gotten too complex to resolve on your own. You turn to a lawyer and trust she will help. But what do you do when the lawyer makes things worse instead of better? If you've lost confidence in your attorney and are considering suing for malpractice, here are some things you should know.
Proving Lawyer Malpractice
If your attorney made serious errors, you may consider suing the lawyer for malpractice. Unfortunately, it is very hard to win a malpractice case. Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. In other words, it's not malpractice just because your lawyer lost your case.
To win a malpractice case against an attorney, you must prove four basic things:
- duty -- that the attorney owed you a duty to act properly
- breach of the duty: she was negligent, she made a mistake, she did not comply with the standards
- causation -- that this conduct hurt you financially, and
- damages -- that you suffered financial losses as a result.
In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how he/she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.
Example: Dorian is hit by a car while he is walking across the street. He hires a lawyer who doesn't file the lawsuit on time. As a result, the judge tosses out Dorian's case and he is unable to refile it. Dorian sues his lawyer for malpractice. He can prove duty (you hired him and he agreed to represent you as your lawyer). If you can prove breach (for example, that the lawyer failed to file the lawsuit within the proper time), you covered one of the hurdles or elements. Then you will need to prove causation (witnesses and a police report attest to the driver that hit you was at fault for your injury). However, to prove that the lawyer's misconduct harmed him financially, you also must show that the driver had money or insurance so that you could have collected the judgment if he'd won.