Do I Have a Legal Malpractice Case Against My Lawyer?

Litigation is rarely quick or easy. And if things go poorly, it’s natural to initially blame the attorney’s legal advice for a bad outcome. In some cases, a client may go so far as to pursue a legal malpractice claim. However, just because you failed to win a lawsuit does not mean your attorney did anything wrong.

If your attorney is negligent and their negligence hurts your case, you may have a professional malpractice claim. For legal advice about filing a malpractice case against your former attorney, talk to a legal malpractice lawyer.

Unhappy With the Outcome of the Legal Matter?

“You cannot look at just the outcome. You can do everything the way you’re supposed to, but a judge or a jury can still rule against you,” says Lon Engel, a professional malpractice attorney at law firm Engel Law Group in Baltimore.

“I’ve been trying cases for 35 years. I have won cases that I should have lost, and lost cases that I should have won. But as long as I do everything by the accepted standards of care, even if I don’t win, that is not malpractice.”

As someone who handles legal malpractice cases for both plaintiffs and lawyer defendants, David Paul Horowitz receives a lot of calls about alleged attorney negligence. One of the most common complaints is from someone who’s unhappy at the conclusion of divorce proceedings. “They’re angry at their attorney. They’re angry with the results,” says Horowitz, of Law Offices of David Paul Horowitz. However, being upset about a result, he adds, doesn’t mean you’re a victim of legal malpractice.

“An attorney can do a fabulous job and lose a case,” Horowitz continues. “You could have three cases in which the facts sound similar, but the witnesses are different, the experts are different, the proof is different, and all those factors contribute to whether the underlying case is successful or not.”

This means legal malpractice attorneys like Horowitz have to be scrupulous. “Not because I avoid family law or anything like that, but because with the emotions involved in those cases, clients often feel personally aggrieved even if the conduct of the lawyer isn’t the cause of the damage that they suffer. But with a meritorious case, I wouldn’t hesitate.”

Proving a Legal Malpractice Claim: Attorney’s Breach of Duty Ruined the Client’s Case

There is no straightforward definition of what attorneys’ actions (or inactions) qualify as legal malpractice. The state’s courts have basically set out three things a former client must prove to prevail against a former attorney:

1. The attorney was employed by the client (attorney-client relationship)
2. The lawyer failed to follow the standard of care of a reasonable attorney
3. The client suffered a loss that was proximately caused by the breach of the duty of care

“The problem with the legal malpractice cases is you’ve got to prove two cases,” says Dan Abrams, of Law Office of Daniel L. Abrams in Manhattan. “You have to prove that the lawyer was negligent, and then you have to prove that the underlying litigation or transaction would have had a different result.”

For the first part, malpractice attorneys have to determine if something a lawyer did or didn’t do ruined the client’s chances in the underlying case. Proving the original attorney departed from good and accepted legal practice often requires expert testimony. “But if someone calls and says, ‘My lawyer blew a statute of limitations,’ the negligence is more or less established,” Abrams says.

Horowitz gives an example: “You have three years to commence an automobile accident case. You hire an attorney, and maybe the attorney decides he doesn’t want to bring the lawsuit and instead is going to try to settle. Then they sit on it for three years and a day.”

Even if you have clear proof of a missed deadline and professional negligence, that still doesn’t mean you’ll have a solid malpractice case. “Because the other thing you have to establish is causation. The departure [from good and accepted legal practice] actually caused harm, which usually involves proving that the underlying case was meritorious,” Horowitz adds. “We refer to it as proving the case within the case.”

So, how do you go about doing that? “The same way you would have proven the underlying case to begin with,” Abrams says. “You have to go back and look at the evidence. Sometimes it’s readily available, and sometimes not.”

Using Legal Experts to Show the Standard of Care

In many cases, you need to use legal experts to prove your case. “You need to have another attorney who’s familiar with that area of practice testify that there’s been a violation of the accepted standards of legal care and that the violation was the sole proximate cause of the damages,” says Engel. “What makes legal malpractice very complex is that it is a trial within a trial. It’s not enough to show that the other attorney failed to perform their duty. You also have to show that, had the prior attorney done the case properly, you would have won.”

Time Limits for Legal Malpractice Lawsuits

There are crucial deadlines to file a malpractice lawsuit. The statute of limitations begins to run from the time you knew or should have known your attorney had acted negligently. If you file your claim after the statute of limitations, the court can dismiss your case.

“Most clients find out that there’s been malpractice in one of two ways: A judge makes a comment from the bench that puts the client on notice that their attorney may have done something wrong; or, two, another attorney makes a comment that puts the client on notice. This can be the attorney on the other side, or the client is not happy, and discharges their attorney, and the subsequent attorney makes a comment,” Engel says.

“These comments are critical because Maryland is a notice state for the statute of limitations. So, the time that you knew, should have known, or reasonably suspected that your attorney committed negligence is when the statute of limitations starts to run. So it’s not when it actually occurs, but when the client knew or should have known that it had occurred,” he adds.

“Witnesses’ recollections may not be clear, documents may not be available, and a vehicle involved in a crash may have been totaled. There are many ways in which the passage of time impacts an attorney’s ability to bring any kind of case,” Horowitz says. “It’s possible the attorney who handled the case has a wonderful file, and it’s current, but that’s not always the case.”

Finding Someone New To Represent You

Due to the variables involved, it’s hard to know if you have a good case or not—let alone two good cases.

“You want someone with knowledge in the area. You want somebody you feel like you’re a good fit with. And, obviously, you want someone with experience,” Horowitz says. “By definition, somebody coming to me has already had a terrible experience with a lawyer. It makes for a different type of relationship in which reassurance is critical. What I do is express my sympathy that they were poorly served and that I understand how it makes you leery of the legal system. But I hope they’ll give me a chance to show you don’t have to have those concerns with me.”

How Much Do Legal Malpractice Cases Cost

“With any malpractice case, they’re expensive because it requires experts,” says Engel. “As a result of that, there are a lot of malpractice cases—medical, legal, accounting, securities, and engineering malpractice—where the client will never get a day in court because the damages are not sufficient to warrant taking the case forward.”

A malpractice lawsuit can cost more than the financial losses in the underlying alleged malpractice claim. At a minimum, he estimates these cases cost $10,000 before attorney’s fees, but they can go much higher. The way attorneys charge for this kind of work can vary, Engel adds. He has taken cases on an hourly fee basis, on a contingent basis (a percentage of the winning verdict), and hybrids of the two.

Find Experienced Legal Representation

If you’re considering suing because of your former lawyer’s negligence, seek legal advice from an attorney with experience in these cases. Visit the Super Lawyers directory to search for an experienced legal malpractice lawyer in your area.