Legal malpractice claims are similar to other negligence claims in that an attorney is held to a certain standard of care when representing a client. The elements of a legal malpractice claim include the requirement that a claimant prove all of the following elements:
The attorney owed a duty of care to the client, established when there is an attorney-client relationship- The actions or conduct of the attorney was in breach of that duty of care
- Any damages suffered by the client were proximately caused by the breach
- The damages sustained by the client are measurable
The standard of care refers to the skills, prudence, and diligence that a reasonably competent attorney in the legal community would exercise under similar circumstances. However, not all alleged negligent acts by an attorney rise to the level of legal malpractice. Just because you expected a certain outcome or verdict and did not obtain it does not necessarily mean that it was malpractice. The determining factor is whether the action or inaction was the type of conduct that a reasonable attorney under similar circumstances would have exercised. For example, not cross-examining a witness or deciding not to introduce or object to the introduction of certain evidence may well be considered a strategic decision, even if the outcome was not as anticipated.
Also, if an attorney acted negligently or carelessly in handling a client’s case, such as failing to conduct discovery, not communicating with the client, mishandling jury selection, misrepresenting facts to a client or the court, or engaging in a conflict of interest, you must have had a winnable underlying case or there are no damages.
What Damages are Recoverable
In a legal malpractice claim, damages are generally the amount that the client would have received in the original case or the difference between what was obtained and what the client could reasonably have obtained if the attorney had acted diligently – not negligently. It is important that the damages are not speculative. Furthermore, we need to prove that the damages could have actually been recovered from the other side in the underlying case.
For example, suppose an attorney failed to file a complaint on time in a personal injury case or did not introduce crucial evidence that a reasonably diligent attorney would have done. If the case was credible and the client recovered nothing or only a small amount, your legal malpractice attorney would have to prove the underlying case AND that the attorney was negligent in not achieving a reasonable result. This is called the case-within-a-case approach.
The case-within-a-case method acts as an objective way to measure damages and protect against speculative damage claims. This means that the legal malpractice attorney would have to try the underlying case and introduce all the evidence that would have been presented. In a personal injury case, this includes medical expenses, lost income, cost of living with a disability, testimony about the loss of quality of life, loss of consortium, and pain and suffering. As a settlement tactic, the attorney could also compare the underlying case to similar cases that were decided in that jurisdiction to see what compensation was awarded.
In a business case, the attorney’s carelessness could have resulted in damages described as lost profit or lost economic opportunity so long as the damages can be reasonably measured.
Pain and suffering, a substantial category in personal injury claims, is not recoverable in for the legal malpractice part of the case – the fact that your attorney’s negligence caused your stress, anxiety or “suffering” is not compensable.
Attorney’s fees paid to the negligent attorney are not recoverable in legal malpractice claims unless there is a finding, by a Court, of unfair and deceptive practices under Chapter 93A, the Consumer Protection Statute.
Retain the Law Office of Burns and Jain
Legal malpractice is not common but often results in substantial harm to a client. If your attorney mishandled your case and it resulted in material harm to you, call an experienced legal malpractice attorney at Burns and Jain at (617) 227-7423 for a consultation about your case.