Can I sue for legal malpractice?
You can sue for legal malpractice, but 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. 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-that the attorney breached the duty, was negligent, made a mistake, or did not do as he or she promised
- causation-that this conduct caused you harm, and
- damages-that you suffered financial losses as a result.
Causation may be your biggest hurdle. To win a malpractice case, you usually must prove not only that your lawyer made a mistake but that you would have won the underlying case if the lawyer hadn't mishandled it. Then, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.
For example, let's say you were hit by a car when you were walking across the street, and you hired a lawyer who didn't file the lawsuit on time, with the result that your claim was legally dead. You sue for malpractice and can easily prove the lawyer's negligence and the driver's liability. But to win the malpractice case against your lawyer, you'd also have to show that the driver had the ability to pay your claim. If you can't show that the driver had the assets to pay the judgment, you won't win your malpractice case, even though the lawyer clearly blew it and the driver was clearly at fault.
It can be tough to find a lawyer to represent you in a legal malpractice case, especially if you want to pay on a contingency-fee basis (that is, the lawyer would get a share of whatever you win). Because these cases can be difficult and time-consuming, lawyers are generally reluctant to accept any but the strongest cases, unless quite a bit of money is involved.
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