Legal Malpractice FAQ

Filed Under: Articles, Professional Malpractice

  • What is legal malpractice?

Just as an automobile driver can be liable if he or she makes a mistake driving a car, a lawyer can be liable if he or she makes a mistake while representing a client. The lawyer does not have to be a bad person, have evil intentions, or have violated an ethical rule of the profession. It is enough that the lawyer erred by doing something that a lawyer of ordinary prudence would not have done. Of course, if a lawyer was motivated by animus or greed, the situation is even worse for the lawyer.

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  • How do I know if my lawyer committed malpractice?

The question the judge asks a jury in a legal malpractice case boils down to whether the lawyer acted as a lawyer of ordinary prudence. Some kinds of negligence (such as missing the statute of limitations) are so obvious that a layperson can understand it was a mistake. But in most legal malpractice cases, expert testimony from other lawyers is necessary to inform the jury what the ordinary prudent lawyer would have done. For this reason clients are often ill equipped to recognize and act on lawyer malpractice. Consultation with a knowledgeable attorney may be the only way that a client learns he or she has been the victim of legal malpractice.

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  • I think my current lawyer may have committed malpractice. Can I consult with a legal malpractice attorney while my current lawyer still represents me?

Just as a medical patient has a right to seek a second opinion, a person represented by one lawyer in a matter has a right to seek advice regarding the matter from another lawyer.

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  • I lost a lawsuit I should have won. Can I sue my lawyer?

Generally a client can sue his lawyer if the lawyer did something that a reasonably prudent lawyer would not have done, and it was that mistake which caused the client to lose the case. Consultation with a knowledgeable legal malpractice attorney is the best way to assess whether a good claim exists against the lawyer.

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  • What is “the case within a case?”

Cases arising from mishandling litigation require trying a “case within a case.” The client has to prove that he would have won the case if the lawyer had not made a mistake. For example, let’s say a person injured in a car wreck hires a lawyer to sue the driver of the car that hit him, but the lawyer fails to file a case before the statute of limitations expires, and the case is dismissed. Even though the lawyer made a mistake, the client will still have to prove that the driver of the car that hit him was negligent and proximately caused his damages, the “case within a case.”

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  • What is the statute of limitation for legal malpractice?

Statutes of limitations vary by State. For legal malpractice, Texas applies a two-year statute of limitation that starts to run upon “discovery.” The law of what constitutes “discovery” and other issues related to the statute of limitations can be complex. Thus, a layman should not assume a claim is barred by the passage of time without consulting an attorney. On the other hand, a person suspecting legal malpractice should seek advice from a lawyer promptly because delay can lead to loss of otherwise viable claims.

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  • What damages can I recover if my lawyer committed malpractice?

The client can recover all damages he or she suffers that would not have occurred if the lawyer had done his or her job correctly. An attorney may also be subject to fee forfeiture in some cases. Punitive damages may also be recovered in some cases.

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  • Can I sue a criminal defense lawyer for legal malpractice?

For policy reasons, Texas and a majority of other states generally do not allow legal malpractice cases against lawyers for doing a bad job defending criminal cases unless the defendant is ultimately exonerated.

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  • What does it cost to sue for legal malpractice?

We prefer to be compensated on an hourly basis for our time. But in meritorious cases with substantial economic loss we will represent victims of legal malpractice on a contingent fee basis.  When we do represent clients on a contingent fee basis, the client is responsible for the court costs and expenses, regardless of recovery.

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