Say you were in a motorcycle accident, but it was clearly another motorist’s fault–they drove right into you without looking. You survived, but suffered significant injuries that took months of recovery, and now you want to sue the other driver for damages. You hired an attorney that seemed reputable. Unfortunately, they didn’t file the right paperwork before the statute of limitations expired, so a judge threw out the case that you clearly would have won. What should you do?
Bringing A Legal Malpractice Claim
In this instance, you probably have a legal malpractice claim against your attorney. Like physicians, attorneys have an obligation to perform to a basic legal standard, and if they fail to meet it, they can be liable. Missing paperwork deadlines is a common basis for malpractice claims, but there are others, too. In general, malpractice occurs if your lawyer does something that causes you to lose a case you should have won.
Because of the highly technical nature of legal work, it’s sometimes difficult to know what counts as malpractice, or what the warning signs even are. Consulting with someone who specializes in legal malpractice is essential in exploring your options.
Winning The “Case Within A Case”
To win a legal malpractice suit, you generally have to prove two things:
- Your lawyer did something negligent that another, reasonably prudent lawyer would not have done.
- The lawyer’s negligence is what caused you to lose the case.
This is why you sometimes hear the term “case within a case.” In a sense, you’re trying two cases at the same time: the initial claim, and the negligence claim. If either one of them fail, your malpractice claim won’t be successful.
In the opening example, you would not only have to prove that your lawyer mishandled your case by missing the deadline, you’d also have to prove that the other driver was at fault in your motorcycle accident.
This is a clear-cut scenario, but the connections aren’t always so direct. Sometimes a lawyer will clearly make a mistake, but it’s harder to establish that there was a direct connection to you losing in court. Other times you can’t tell whether there was actually a mistake or not. Again, a legal malpractice expert should be your guide, as the waters can become quite murky.
Being the victim of legal malpractice is disheartening. Not only do you have to deal with the original claim that put you in court, but you additionally have to fight against the very person who was supposed to be your greatest advocate. It’s easy to feel like giving up. However, with perseverance and a proven counsel at your side, you can finally get the justice you were striving for in the first place.