Attorneys often encounter their clients at a low point Whether you're seeking an attorney to finalize a divorce or fight for custody of your child, to defend yourself against a criminal charge, or to bring a lawsuit against someone who has caused you injury, you may be anxious and concerned about protecting your rights.
While an attorney can help you do this, they're also human; whether due to negligence, an error in judgment, or simply having too many balls in the air, your attorney might make mistakes that can cost you your day in court. When is it appropriate to seek damages for legal malpractice against your former attorney? Read on to learn more about some of the elements you'll need to establish to succeed in a claim for attorney malpractice.
What Will You Need to Prove to Recover?
The standard for attorney malpractice is a bit different for other types of civil claims. Often referred to as the "trial within a trial" approach, you'll need to establish four elements: (1) that the attorney owed you a duty; (2) that the attorney's actions fell below the standard of care; (3) that this breach caused you damages; and (4) that, if not for the attorney's breach, your underlying legal claim would have been successful.
As a practical matter, this generally means that you'll need to fully litigate the underlying legal claim, and then, if the judge or jury finds that you would have succeeded in this claim, litigate the malpractice issue, including the amount of damages. If your underlying legal claim would have failed, even the most blatant attorney negligence won't be sufficient to prevail on a malpractice claim (although you may still be able to seek a refund of any unearned fees).
On the other hand, if you're able to show that your underlying claim was meritorious and would have resulted in an award in your favor if not for your attorney's negligence, you may be entitled to damages above and beyond what you would have received in the underlying claim, including legal fees in the malpractice claim, pain and suffering, and various noneconomic damages.
How Can You Find an Attorney?
As you can imagine, finding one attorney who's willing to accuse another attorney of legal malpractice can be tough. Because of this, there are attorneys who specialize in this area of law, litigating only legal malpractice claims. Check with your local bar association or the American Bar Association to see whether there's a list of legal malpractice attorneys in your area, as this can narrow down your search significantly.