Is It Really Legal Malpractice?
Before you go through the emotional process of reaching out to an attorney thinking that you have a good legal malpractice case, only to be turned down and rejected by everyone you talk to, you may want to take a look at your situation. It may be that you don’t have a case.
Legal malpractice is negligence by a lawyer in handling any legal matter. Negligence, under the law, is the failure to use reasonable care under the circumstances. To have an actionable malpractice claim takes more than simple negligence though. In order to have a valid legal malpractice case, the negligence has to cause damage to the client or intended beneficiary of the legal work. So for any prospective legal malpractice case, our firm, or any other firm analyzing the possible case, will analyze all three elements – can we prove negligence, can we prove causation, and can we prove sufficient damages that make the case feasible in court.
So for any prospective legal malpractice case, our firm, or any other firm analyzing the possible case, will analyze all three elements – can we prove negligence, can we prove causation, and can we prove sufficient damages that make the case feasible in court. Even if you have one or two of th
e elements, there is no case. You must have all three for a malpractice case.
It would be difficult, one might even say impossible, to simply make a list of the types of legal malpractice cases that are good or bad. Each case, like each client, is unique and needs to be considered on its own particular facts. Some situations should be resolved through a lawsuit, others should not.
If filing a lawsuit seems to be the best option, one of the most important factors is cost. Since legal malpractice cases are so expensive and time-consuming to pursue one of the first questions we need to address is whether the case is economically justifiable.
It might cost tens of thousands of dollars in out-of-pocket expenses and take two or three years to pursue your legal malpractice case to conclusion. If the likely recovery is less than what it would cost to prove legal malpractice, then it would not be to your benefit to file a case. That said, you should let an experienced malpractice attorney make that decision with you.
Assuming the damages are large enough to justify bringing suit, we must also carefully determine if there is a liability. Did the action or inaction of the first lawyer fall below the professional standard of care and did it lead to the damage complained of. Often times we will need to hire expert witnesses to testify about the issues in the case. This is meant to help prove that the malpractice is legitimate.
If we cannot find an expert able to testify to the malpractice, then it’s unlikely a jury would be willing to award you damages. They would more likely find in favor of the other attorney. If that happens, you may be required to pay their legal expenses. Again, this is not something you should decide on your own. Speak with an attorney who has handled legal malpractice cases before, and let them work with you to make a decision on whether you have a good case.
If you want to talk to us about the possibility of handling your case, McMillen Law Firm will consult with you FREE of charge. We accept legal malpractice cases anywhere in Florida. Please feel free to call 1-800-974-4929 to speak directly to an attorney free of charge.
If it is decided that you don’t have a legal malpractice case, then you may still have options. The Florida Bar disciplines attorneys who have failed to meet the rules and guidelines laid out for them. Consider contacting them.