Legal malpractice, or legal negligence, requires that a plaintiff or person bringing a claim against his or her prior attorney has the burden of proving all elements of a negligence claim. These elements are:
The attorney must possess a duty of care to the claimant. This duty of care entails using a degree of attention, expertise, and diligence that a reasonable attorney practicing within the legal community would have exercised in a similar situation.- The defendant breached his duty of care to the plaintiff by failing to use the degree of skill, care, and diligence reasonably expected.
- That the defendant’s incompetence or irresponsible conduct was a proximate cause, or a substantial cause, of the claimant’s damages.
- The claimant suffered damages.
An attorney retained to represent the interests or claims of a client is in an attorney-client relationship and owes the duty of care outlined above. By failing to take certain actions expected of an attorney similarly situated for the type of case for which he was retained, such as failing to file a lawsuit before the expiration of the statute of limitations or neglecting to investigate a valid claim that led to its dismissal, the attorney likely breached his duty of care.
What is Proximate Cause?
However, a plaintiff must also prove that the negligent or unlawful conduct was the “proximate cause” of the plaintiff’s injuries. This test is generally referred to as “but for” the defendant’s failure to act or other negligence, the plaintiff would not have suffered any damages such as dismissal of the claim. An example of where the “but for” standard shows that a defendant’s negligent or intentional misconduct is not a proximate cause of an injury or damage is one in which a husband poisons his wife’s drink. After drinking the poison, the wife goes to bed and does not wake up. An autopsy reveals the presence of the toxin in her blood but concludes that the woman died from a heart attack unrelated to the poison. Accordingly, the husband cannot be charged with murder as the poison was not the proximate cause of her death, though the husband can still be charged with attempted murder.
Another aspect of proximate cause is whether the damages suffered by the plaintiff because of the attorney’s lack of action or negligent conduct were foreseeable or would have resulted in the harm alleged. In other words, would the plaintiff have prevailed in the underlying case and collected the substantial damages that would have reasonably resulted but for the attorney’s negligence? For example, the attorney may have failed to interview, depose, or call at trial a credible witness who would have certainly corroborated the plaintiff’s version of events or who neglected to present expert medical testimony that would more than likely have led to a favorable result and significant compensation. In this scenario, the defendant’s omission was a proximate cause of the plaintiff’s damages that were entirely foreseeable.
The Case Within the Case
In any legal malpractice claim, the plaintiff must prove the merits of the underlying case or that she would have prevailed or fared much better in her case had her attorney acted responsibly and with the degree of care and skill reasonably expected of him. For instance, the plaintiff was seriously injured in a car crash but alleged that her attorney failed to file a lawsuit before the statute of limitations expired, which led to the dismissal of her case. She may be able to prove that the attorney did not file the lawsuit on time, but she must also prove that another party was liable for the accident and her injuries. If the case involved a crash at an intersection where both parties claim the other failed to stop at the sign in place for both parties, but there were no independent witnesses or other evidence proving fault, the plaintiff would have no claim for legal malpractice since she could not sustain her burden of proof.
In some jurisdictions, the plaintiff might be able to recover, provided the case was in a state where the comparative negligence rule was 50% or where both parties may be equally at fault. Some states have a pure comparative negligence rule where even if the other party was only 1% at fault and the plaintiff 99% liable, she could still recover damages of 1%. Massachusetts has a 51% rule, so in this case, where both parties allege that the other ran a red traffic signal, the plaintiff would likely be unable to show that the other party was at least 51% at fault.
Retain the Law Office of Burns and Jain
Many legal malpractice cases involve complex issues. Attorneys with malpractice insurance are often represented by highly experienced defense attorneys who vigorously defend their clients. By retaining seasoned legal malpractice attorneys at Burns and Jain, you will have an attorney offering an equally zealous and relentless prosecution that will give you an excellent opportunity to get the result you deserve. Call a legal malpractice attorney at Burns and Jain at (617) 227-7423 for a free consultation about your malpractice claim.