There are a number of issues that you should consider before you file a legal malpractice claim against a lawyer. Your lawyer should discuss these issues with you so that you understand how to proceed:
- Did the lawyer cause your harm or was it caused by someone or something else? You are required to prove that the lawyer was the proximate cause of the loss of your case. Consider whether you would have won the case absent whatever error you believe the lawyer made. Play Devil’s Advocate – even if the lawyer had done what he was supposed to do, would I have won the case? Often the answer to this question is “No” because the case could not be won under any circumstances.
- Am I prepared to waive the attorney-client privilege? When you sue your lawyer you are almost always deemed to have waived the attorney-client privilege. That privilege shields communications from you to the lawyer and from the lawyer to you. It allow you to seek legal advice without fear that your own words will come back to haunt you. But if you sue a lawyer, you waive the privilege. Consider carefully whether the waiver of the privilege is worth it to you.
- How much is it going to cost me to sue a lawyer? Legal Malpractice cases can be handled on a contingent fee basis or an hourly fee basis. Carefully consider how you wish to pay for the representation. Also, you must consider who is going to pay the cost of the expert witness. You are required to have at least one expert testify as to the standard of care. What is that going to cost? Given the costs of the case, is it worth it to file suit?
These are important questions that you should ask your lawyer before you file suit. You may find that it is better to live with a bad result rather than filing a lawsuit.
Edward X. Clinton, Jr.