Could it be a mistake or malpractice?

Deciding whether a situation is malpractice or a mistake requires careful application of the malpractice laws and an understanding of the elements a court requires to prove such a claim.

The American Bar Association explains that attorneys have a duty under their license obligations to provide you service that follows community standards, which does not mean they must win your case but rather represent you to the best of their abilities.


The first step is determining if a situation is malpractice or a simple oversight is to identify negligence on the part of the attorney. For example, if he or she never spoke with you about your case, then this is a clear situation of negligence. Any situation where the attorney was unreasonable with his or her also falls into the category.

You may look to what another attorney would have done in the same situation to determine the validity of your attorney’s actions. For example, if your attorney did not call any witnesses in your case when it is clear that another attorney would have, then this deviates from the community standards.


You must suffer some damage due to the actions of your attorney to prove malpractice. You must prove the actions directly led to your loss. For example, you cannot just say that you would have won your case if the attorney did not take a certain action. You must prove you would have won your case.

You also must show that damages were significant. Your loss must justify the costs of litigation in the matter, which are quite high.