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Can I sue my lawyer for mistakes made in my case?

When faced with legal issues, we rely on lawyers to help fix our problems and make our lives better. Sometimes, however, lawyers can make things worse. When a lawyer makes a serious mistake and that mistake causes you harm (financial damages, loss of property, or loss of your liberty), you may be able to sue your lawyer.

Even if you have a wonderful lawyer, no one is perfect. We all make mistakes. In fact, the American Bar Association says that most lawyers will commit malpractice three times during their career. If the mistake can’t be fixed and you suffer harm, you may have an actionable legal malpractice claim. We are competent attorneys in the field of legal malpractice, and we can assist with your action against your lawyer.

We help Malpractice Victims Recover Money Damages. Call 877.858.8018

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What You Need to Prove a Legal Malpractice Case

Suing your lawyer and proving legal malpractice isn’t always easy. Not only must you prove that your lawyer erred or committed malpractice, but frequently you must also prove that you would have won the underlying case but for the malpractice. This is called the “case within a case.”

How to sue a lawyer – The necessary showings

To successfully sue a lawyer, you must show* that:

  • There was an attorney-client relationship;
  • The lawyer owed you a duty of care;
  • The lawyer was negligent in carrying out his or her duties, or engaged in deliberate or willful misconduct, or otherwise acted in a manner inconsistent with the law;
  • You suffered actual harm; and
  • Your harm was suffered as a direct consequence of the lawyer’s actions, misconduct, or mistake.

To describe in a bit more detail: You must first prove the attorney-client relationship. That is typically a simple showing if there is a representation letter or retainer agreement. If there is no agreement, a relationship can still be shown through a course of conduct. For example, if you are paying your lawyer or she is writing letters on your behalf, you will have a much simpler time proving a relationship.

If a lawyer agrees to help you, he or she owes you a duty of competent and skillful representation. That is typically enough to satisfy the second element. Keep in mind: There is no “half way.” If an attorney is too busy or doesn’t have the skills, that attorney should tell you up front and not take the case.

The third element relates to the duty of care. In most states, that duty is to exercise “the care, skill, and diligence commonly exercised by other attorneys in similar conditions and circumstances.”

No attorney should guarantee certain results. In most jurisdictions, lawyers can base their fee on certain outcomes for certain types of cases. In a personal injury case, for example, a lawyer can agree that he only gets paid if you win. What the lawyer can’t do is provide a guarantee that you will win.

Many legal controversies have a “winner” and a “loser.” Simply because a lawyer lost your case does not make the attorney is guilty of malpractice. If the lawyer loses the case because he was incompetent or missed a deadline, however, there is malpractice.

The fourth and fifth elements of a successful legal malpractice case related to damages. You must suffer a harm and that harm must be the fault of the attorney. That may sound obvious but in the legal malpractice world, it isn’t always obvious.

Let’s say you have the worst lawyer in the world. She won’t return calls, is often impaired and is suffering from some type of psychological condition that impairs her judgment. Yikes! You say that screams malpractice and it does. But suppose she represented to you in a trial or transaction and facts emerge that say you would have lost anyway, no matter what she did.

Was there a loss or harm? Yes. Is she the cause? A jury could easily decide that you would have lost anyway.

Once again, we share this information with you not to scare you away. If your lawyer botched your case and his handling of the case was the cause of your damages, we are ready to help.

The “Attorney Judgment” Rule

Important in this discussion is the “attorney judgment” rule. Lawyers frequently must make important strategic decisions. If an attorney acts in good faith and that decision later turns out to be wrong, there may be no malpractice. Hindsight is wonderful, long after the parties have left the courtroom, some may begin to question the decision to call this witness or not call that witness. Absent incompetence or being unprepared, it may be difficult trying to second guess a strategic decision.

We mention this not to scare you away from a suing a lawyer. Unfortunately, we have encountered too many bad lawyers or lawyers who made bad mistakes. We share this information simply to give you a complete picture.

We help Malpractice Victims Recover Money Damages. Call 877.858.8018

Or Connect Online

Common Examples of Legal Malpractice

Common examples of legal malpractice include bad legal advice, conflicts of interest, missed deadlines, situations where the lawyer also seeks to be a partner in your venture, situations where the lawyer is unprepared, abandons the case, or settles without your permission. Let’s look at some common examples.

According to the American Bar Association, the top five categories of attorney negligence are:

  • Failure to know and properly apply the law
  • Inadequate discovery and preparation
  • Failure to know and meet deadlines
  • Conflicts of interest
  • Planning errors

The same ABA study says that most malpractice claims occur in connection with personal injury matters, family law, real estate transactions, estate planning and probate work and debtor’s rights (collections and bankruptcy law).

Attorney malpractice cases we have seen include:

  • Conflicts of interest
  • Intentional wrongdoing
  • Breach of fiduciary duty
  • Incompetency
  • Tax shelter malfeasance
  • Gross misconduct
  • Breach of confidentiality
  • Theft of trust funds
  • Gross negligence
  • Fraud
  • Poor legal advice
  • Missed filing deadlines
  • Drafting errors
  • Ethical violations
  • Legal fee disputes (overbilling)
  • Poor estate planning advice
  • Bad title searches
  • Cyber claims
  • Abandonment
  • Settling claims without consent

Note: Theft and Fraud Are Not Malpractice

We routinely lump fraud and theft of trust funds as legal malpractice. Technically, they are crimes. Because they are considered intentional acts, though, most professional negligence insurance policies do not cover theft or fraud. In a close case, how you plead the case (how you draft the complaint) could mean the difference between collecting money damages or receiving a worthless piece of paper.

Limited Time Periods to File Claims

(Malpractice Statute of Limitations)

The time period in which to sue a lawyer for misconduct or malpractice is often quite limited. In some states, it is as little as one (1) year!

There may be ways to extend the time period. If your lawyer continues to represent you or covers up the malpractice, you may be able to extend this window of time. Beware the lawyer who says he will fix the problem but then disappears or does nothing. The clock continues to tick.

Often it takes months after suffering a major loss to even think straight, much less figure out what happened. The first thing on your mind probably isn’t getting in another battle, this one with your former lawyer. We urge you to contact us immediately if you believe you that your lawyer has caused you harm.

Bring Your Best Case

Suing your lawyer is not an easy decision to make. After suffering from one loss are you ready to fight yet another battle? Are you wondering if you have a case?

If you have been victimized by a lawyer, we can help answer these questions and help you achieve the justice you deserve. Even if your lawyer arguably made an honest mistake, there is no reason you should suffer.

We pursue serious legal malpractice where there is a loss of $5 million or more. Depending on the jurisdiction, we may consider smaller cases. In Wisconsin, our minimum case is $1 million. We have a robust network of lawyers throughout the country. Call us. We may be able to help.

Do You Have a Valid Claim Against a Lawyer? Call 877.858.8018

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*Malpractice laws vary from state to state. This page contains general information only.