Do I need an expert to prove legal malpractice?
UPDATED: June 19, 2018
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If your attorney provides you with a level of representation below that of a reasonable attorney, you may have a claim for legal malpractice. You may also have a claim for legal malpractice if an attorney breaches his or her legal duty to you by acting in a manner that is contrary to your best interests. In any legal malpractice case, however, you will need expert witnesses to testify on your behalf.
Proving Legal Malpractice
- Winning a legal malpractice case is challenging because you have the burden of proving several elements of the tort case. In order to win a legal malpractice claim, you must show:
- That the attorney owed a duty to you - that through accepting payment for their services, they agreed to, and therefore had the duty to, represent your interests;
- That the attorney breached the duty owed. Attorneys have a fiduciary duty to act in a way that best serves their client and a duty of competence, which means they must provide you with a level of skilled representation that a reasonably capable attorney in the same position would provide.
- That the breach of duty directly caused you to suffer some financial loss. In other words, you must prove that you would have otherwise won your case, collected a larger damage award or had a different outcome had your attorney not failed to perform as expected.
- That there was some actual financial loss to you as a result of your attorney's actions.
When you take your case to court, these elements of your case must be proven to a jury. Most juries are not made up of lawyers or legal professionals, so it can be difficult for a jury to know exactly what a reasonably competent lawyer would have done in your case. An expert can testify as to what your attorney should have done and as to why his or her behavior fell short.
One of the most difficult aspects for a legal malpractice plaintiff is proving that there was actual financial loss caused as a direct result of the attorney's lapse. It can be a great challenge to show that a better legal outcome would have been certain to result with a better-performing attorney.
Often, whether you can win your case will come down to whether you have compelling expert witnesses that can testify as to why you would have had a better outcome and convince the jury that you actually did lose out on something you would have had if your attorney had been more capable.
Consult a Legal Malpractice Attorney
When you are the victim of legal malpractice, you should speak with a competent attorney who specializes in legal malpractice claims. Your lawyer can assist you in finding skilled expert witnesses who will be able to explain complicated legal concepts in a way that a jury can understand.