Can I Sue My Lawyer for Malpractice?

Your lawyer's negligence caused you to lose a case you should have won, costing you thousands of dollars. Can you sue for malpractice? Yes, you can. That's the easy part. Now for the hard part.

What you really want to know is:

• what is legal malpractice
• how do I know if my lawyer committed malpractice, and
• given the facts of my case, does it make sense to sue?

Our goal here is to answer the first two questions. Because we don't know anything about your case, we can't answer the third. But we can—and will—give you some guidelines to consider as you decide whether to pursue your potential legal malpractice claim.

What Is Legal Malpractice?

In the simplest terms, legal malpractice happens when a lawyer's negligence causes you to suffer an injury. While that sounds simple, there's actually quite a bit to unpack.

The Four Essential Elements of a Malpractice Claim

To prove any legal malpractice claim, you must establish these four elements.

• A duty of care. Proving that your lawyer was negligent starts by showing that they had a duty to act with reasonable care under the circumstances. When you hire a lawyer to represent you, the lawyer takes on this duty. It requires that they handle your matter with the same level of care and skill that an ordinarily careful lawyer with similar training would use under the same circumstances. In a nutshell, the duty of care question asks this: What should my lawyer have done to properly handle my case? You might also see this duty referred to as the "standard of care."
• A breach of the duty of care. When your lawyer's conduct falls short of what the duty of care requires, they've breached of the duty of care. These first two elements—a duty of care and breach of that duty—are what the law calls "negligence." To have a legal malpractice claim, you need negligence plus the two remaining elements.
• Damages. You must show that you suffered some harm, like a financial loss, a loss of some property, or maybe a loss of child custody or visitation. It's not enough that the outcome was disappointing or wasn't what you'd hoped it might be. You can lose even with the best, most diligent legal representation. Without sufficient damages, either you don't have a legal malpractice claim or you don't have a claim that's worth pursuing.
• Causation. Finally, you have to prove that your damages were caused by your lawyer's negligence. Most times, causation isn't an issue. It's obvious that your lawyer's misconduct caused the harm. But there can be situations where causation is a problem. Your lawyer will try to prove that the outcome would have been the same regardless of what they did or failed to do. When causation is in play, it can be a claim killer.

Watch Out for the Statute of Limitations

Every state puts a deadline—called a statute of limitations—on the time you have to file a legal malpractice lawsuit in court. While the limitation period can vary from one state to the next, two or three years from the date you discover the malpractice is common. Note that many states have a special statute of limitations for malpractice claims, one that's different from the deadline for personal injury claims generally. Make sure you're looking at the correct law.

Statutes of limitations have one job: To kill legal claims that aren't filed in time. Miss the deadline and, absent an exception, your malpractice claim is legally dead. If you file in court after the limitation period runs out, the defendant (the lawyer you've sued) will ask the court to dismiss your case. The court will have no choice but to grant that request. You've lost the right to recover compensation for your injuries.

Statutes of limitations can be among the most complicated and confusing of all laws. When you're not sure how much time you have to file a malpractice lawsuit, speak to a lawyer right away. Time is the enemy of your claim.

How Do I Know If My Lawyer Committed Malpractice?

Proving malpractice of any kind—legal or otherwise—isn't easy. Truth be told, you probably don't know whether your lawyer was negligent. To show legal negligence, you'll need an expert witness to help prove your case.

What Is an Expert Witness?

An expert witness is a person who's qualified, by education, training, or experience, to testify regarding matters that are beyond the usual knowledge of judges and jurors. In a typical legal malpractice case, you'll need an expert to testify to both liability—duty and breach of duty—and causation. Your expert is likely to be a well-established and experienced practicing lawyer, or maybe a law professor.

It's up to the judge in your case to decide whether your expert is qualified to testify and, if so, the subjects on which they can offer opinions. The defendant will almost certainly challenge their credentials and ask the judge to prohibit them from testifying. Of course, that door swings both ways: The defendant will need an expert witness to counter yours, and your attorney will test that expert's qualifications, too.

How Do I Prove Malpractice?

One of the things that makes a legal malpractice case tricky is that it's really a case within a case. First, you have to prove you had a viable legal claim. Then you have to show you lost that claim, or part of it, because of your lawyer's malpractice.

In practical terms, to win a legal malpractice case in most states, you must prove that:

• your attorney made one or more errors—mistakes that a reasonably careful and competent lawyer wouldn't have made—while handling your underlying case
• you would have won the underlying case, or gotten a better result, had your attorney not mishandled it, and
• had you won the case, you would have been able to collect your damages.

Here's a quick example. While walking across the street with a proper crossing signal, Steve was hit by a car. Had Steve's injury case gone to trial, a witness would have testified that Steve was crossing with the signal, and a police report would've corroborated that testimony. Steve's medical records, along with testimony from his treating doctor, would have shown his injuries. Finally, assume that the driver had enough car insurance to pay for Steve's damages.

Steve hired a lawyer, Doe, who filed the lawsuit after the statute of limitations ran out. As a result, the judge threw Steve's case out of court.

Steve sues Doe for legal malpractice. Can he prove his case? Yes.

• Duty. Steve's expert witness will prove duty. Steve hired Doe to handle the case, and a reasonably careful and competent lawyer would have filed the lawsuit on time.
• Breach of duty. The expert will testify that Doe breached the duty of care by failing to timely file suit.
• Damages. Steve can prove all the elements of his underlying personal injury claim. Additionally, he would have collected damages for his injuries had he won, because the driver had enough liability insurance.
• Causation. Finally, Steve's expert will show that his lawyer's negligence caused Steve to suffer a financial loss.

Does It Make Sense to Sue for Legal Malpractice?

Unfortunately, that's a question we can't answer. It all comes down to the facts of your underlying case and the strength of your legal malpractice claim.

In general, here are some of the questions you'll want to consider. You should have an experienced lawyer guide you through that analysis.

Damages Are Critical to a Viable Malpractice Case

Pay close attention to your damages. A legal malpractice case is likely to be quite expensive, mostly because of the need for expert testimony. Experts don't come cheap, often charging several hundred dollars per hour. An expert will have to review your entire file—including the underlying case file—prepare a written report, testify in a deposition, and probably travel to the place of your malpractice trial to testify in court.

Those hours add up quickly. As a rule of thumb, count on a bill of at least $10,000 for each expert witness who testifies in court.

If you have a strong malpractice case, your malpractice lawyer will advance that cost (and other case expenses, which can run into thousands of dollars) and will deduct it from your settlement or jury verdict. But your case needs to have enough value to cover those costs plus the attorney's fees, and leave enough to make it worth your time and trouble.

What Damages Can You Recover in a Legal Malpractice Case?

Remember that a legal malpractice claim is a case within a case. If you win, you can recover:

• the damages you would have collected in the underlying case, and
• any additional damages caused by your lawyer's negligence.

Most often, you'll be awarded what the law calls compensatory damages. Let's return to our example involving Steve to illustrate.

For his underlying personal injury damages, Steve would have been entitled to:

• his hospital, medical, and rehabilitation expenses
• wages or earnings he lost while recovering from his injuries
• any other out-of-pocket costs, like amounts he paid for medical equipment or to have others take care of household chores and maintenance, and
• compensation for his pain and suffering.

In addition, Steve can collect the damages caused by Doe's malpractice. For example, he's entitled to damages for the emotional distress caused by Doe's wrongdoing. Calculating malpractice damages can be difficult and likely will depend on your state law. Speak to an experienced legal malpractice lawyer about the specifics of your case.

Is It Legal Malpractice?

Remember what we mentioned above: A bad or disappointing outcome doesn't always equal legal malpractice. Sometimes, the things that make you mad at your lawyer are just part of the ebb and flow of a legal claim.

Here are some common complaints clients have about their lawyers, along with a brief analysis of whether the lawyer's action (or inaction) amounts to malpractice.

Your Lawyer Quits Working on Your Case

Whether this is legal malpractice depends—at least in part—on why your lawyer quits working, and when they tell you what's going on. For example, if your lawyer is diagnosed with a debilitating illness or suffers a serious injury and they promptly let you know so you can find new counsel, there's probably no malpractice.

But if the lawyer just blows off your matter because they've got better cases to work on, you might have a viable claim if you can prove damages. The longer the attorney ignores you and your case, the more likely it is to amount to malpractice.

Your Case Gets Dismissed Because Your Lawyer Neglected It

These are the facts of Steve's hypothetical case, above. The difficulty will be proving not only that your lawyer mishandled the case, but that if handled correctly, you could have won and collected a judgment.

Your Lawyer Recommends a Disappointing Settlement

Suppose your lawyer recommends you settle for far less than their original estimated case value. While you might have good reason for being disappointed, getting case value wrong probably isn't malpractice. What your case is worth depends on a lot of factors, and those factors can change over time as your lawyer finds out more about your claims and the other side's defenses.

If you're worried about legal malpractice, get a second opinion before taking the low settlement offer.

Your Lawyer Settles Without Authorization

This is malpractice. Your lawyer can't agree to a settlement without your approval. But keep in mind the damages issue. If the lawyer settled for what your case was really worth—or something close to it—it might not make sense to pursue a legal malpractice claim.

Your Lawyer Socializes With Opposing Counsel

This almost certainly isn't malpractice. There's nothing wrong with opposing attorneys playing tennis, bridge, or golf, or enjoying other common social interactions. In fact, those encounters might lead to settlement.

The answer could be different if, during a social event, your lawyer discloses confidential information that hurts the value of your case. That's a violation of the lawyer's ethical obligations and can be the basis for a malpractice case.

Your Lawyer Misuses Funds

Say your lawyer misuses money you paid as a retainer, or takes money from your settlement over and above their case fees and expenses. In the simplest terms, that's stealing client funds. Not only is it legal malpractice, it's also such a serious ethical violation that it's likely grounds for suspension of the lawyer's license or disbarment.

If you suspect your lawyer has misused funds, complain to your state bar association or other attorney regulatory agency. Most states have a client reimbursement fund that will cover losses like these, at least in part. In addition, hire a lawyer to investigate and handle your legal malpractice case.

What Comes Next?

In case it's not already clear, a legal malpractice case isn't something you want to handle on your own. The defendant and their malpractice insurer will probably put up a real fight. Without experienced counsel on your side, you'll soon be in over your head.

You won't get a second bite at the legal malpractice apple. To get the best result, here's how to find a lawyer who's right for your case.