To win a legal malpractice case the plaintiff must prove a case-within-a-case and show that, but for the breach of the standard of care by the attorney, the plaintiff would have prevailed in the underlying case. Here are some examples of client complaints about lawyers that won’t meet that standard.
- “He never returned my calls.” Even if this is literally true, the plaintiff must still show that there was some valuable information that the attorney ignored that caused the loss of the underlying case. Failing to communicate with the client may be a breach of the duty of care, but it is not legal malpractice unless it caused damage to the client.
- “He did not take discovery.” This might be negligence, but the plaintiff must show what the discovery would have shown had it been taken. Thus, if proper discovery would have identified a missing marital asset in a dissolution of marriage case, the plaintiff may be able to state a claim. If discovery would have revealed nothing material, however, the failure to take discovery did not cause any damage to the client and there is no legal malpractice.
- “My lawyer failed to call a witness at trial.” This purported error is almost never sufficient unless the witness had important knowledge of the actual events at the center of the case. Lawyers also have the authority to make judgement calls and to ignore some client requests if they believe that calling the witness is a bad tactical decision.
- “He lost the trial.” Unfortunately, like games in the NFL, trials have a winner and a loser. Losing is not malpractice. It is simply losing. Plaintiff must show that the lawyer breached the standard of care and that the breach of the standard of care caused the damage.
- “He forgot to appeal.” Failing to appeal may be a bad practice but it is not malpractice unless the appeal would have been won. Since only 15% of appeals have merit, this is a tough standard to meet.
In sum, many things that drive clients crazy are not sufficient to state a claim for legal malpractice. To do that, the plaintiff needs two things (a) a breach of the duty of care and (b) damages resulting from the breach.
Edward X. Clinton, Jr.