Your lawyer’s supposed to act in your best interests. What do you do when they don’t? Here’s how to file a legal malpractice lawsuit.
No one is perfect. Not doctors, not lawyers, and not anyone else in any profession. Even robots, who supposedly have no human error, malfunction sometimes.
And you can’t sue someone for every mistake they make in their profession – you’d have no money left.
You can only file for legal malpractice if you can prove that attorney truly did something wrong. Ready to learn more?
What is Malpractice?
If you’re a lawyer or a doctor, you most likely have malpractice insurance. That’s how common/impactful getting sued for malpractice can be.
And most of the time someone sues, the professional didn’t do anything wrong, but they made a mistake (that anyone could have made). The thing with malpractice is you have to prove that they made a mistake 1. with a motive or 2. something so simple to catch/avoid that they were being lazy not to see it.
For example – let’s say you have a surgery to get a breast reduction and the doctor goes in and one side comes out bigger than the other. That’s not malpractice, it’s a risk of the surgery.
The body can decide to place that implant differently on one side than the other. The doctor can go in and fix it later, but it’s not something they did on purpose or that could have been calculated and avoided.
However, if the doctor put in implants and used a material you told them you were allergic to, then that’s malpractice. You enclosed an allergy, and they overlooked it, putting your safety at risk.
It’s the same idea when it comes to legal malpractice, though we used the above medical malpractice example for the better visual.
To prove that your lawyer needs to be sued for malpractice, you’ll need the advice of another legal professional. That way they can tell you if it’s a mistake anyone could make or if it was due to negligence.
The definition of legal malpractice is when an attorney mishandles a case with the intent to cause harm/damages OR when they handle it inappropriately because of negligence.
Negligence, or not doing something, is more common – and it’s a lot worse than it sounds.
Negligence is often cited when taking children away from their parents, for example. Or pets away from families. If your child wanted to not wear a coat, but it was 10 degrees and they had to walk to the bus stop, you’d make them – right?
But if you didn’t care enough to buy your child a coat and let them show up to school in clothes that could harm them (frostbite etc), that’s negligence.
The same is true for keeping pets outside during bad storms or not getting them needed medical attention.
Types of Attorney Malpractice
To prove attorney malpractice, in either harm or negligence, you have to prove you have an attorney-client relationship. Usually doing this is easy, as you sign a contract that you agree to let them represent you.
But, say, if the lawyer doesn’t give you anything in writing but works with you on your case, you can still prove this. As long as you can site specific and reasonable reasons why you thought a relationship was present, that’s usually enough proof.
That said, you should always get some sort of paperwork from your attorney. It’s not only common courtesy, but it’s also common practice. If they don’t provide you with a contract or any form of written representation about your case, that’s a red flag.
Once you’ve proved there was a client-attorney relationship, you can work towards proving they did something wrong. To prove negligence, you have to prove that they didn’t take steps any other attorney would have taken.
The thing about proving negligence is it’s difficult because no lawyer can ever promise you an outcome. Things come up in the case that they have no control over. To prove negligence you’d have to show mishandling of documents, that they never filed something with the court, or that they did something otherwise pointedly wrong.
In the legal world, we call this a “breach of duty”. The best way to prove it is to see if another lawyer would have done the same thing. If someone with a comparable amount of skill or experience may have done it, then you don’t have a case.
If they agree that whatever your lawyer did was a mistake they or no other lawyer could have made without really dropping the ball, then you might have a good case.
It’s still up to the judge to determine if it was a breach of duty- as they’ll have to make a ruling over your attorney’s intentions (which we can never know).
Harm or Damages
Most of the time when someone is sued for malpractice because of harm or malintent, it has to do with the conflict. A lawyer cannot, in good faith, represent a case they have an opinion in.
Like you wouldn’t want your mother’s new boyfriend fighting as the lawyer in a divorce settlement case against your dad. The lawyer has a relationship with the client that’s not strictly professional, and that’s inappropriate.
It can also be a conflict on more corporate grounds, like the attorney having a buy-in or investments in a company. The more detached they are from the situation, the better.
Most legal malpractice attorney professionals will walk you through if you have a case or not before they charge you a pence.
How to File Legal Malpractice
If, after reading this, you think you have a case – great. You’ll need to find a legal malpractice attorney who has time to take your case and agrees that your previous lawyer did something wrong.
Make sure you get a contract from them (which they should automatically provide) and get ready for a legal battle.
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