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      A.  Introduction

      Legal malpractice claims involve the application of the general tort principles of negligence to a lawyer’s actions in the course of representing or advising a client.  There are as many ways for a lawyer to commit malpractice as there are reasons for someone to hire a lawyer in the first place.  The term "malpractice" can also encompass deliberate acts that harm the client.  Deliberate conduct that causes harm can sometimes be pursued as a claim for fraud or breach of an attorney's fiduciary duty and can result in the imposition of punitive damages against the attorney.  This discussion is not meant to address those situations and will instead focus on errors rather than deliberate conduct.

      B.  Errors and Omissions      

      Malpractice can occur in the context of a lawsuit, as the result of an attorney drafting a contract, will or other written instrument, or simply because an attorney gives bad advice in response to a question.  Regardless of the precise fact pattern in which the error occurs, the basic standard of care governing an attorney’s conduct remains the same.  In California, a lawyer is required “to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.”  (Lucas v. Hamm (1961) 56 Cal. 2d 583, 591).  When a lawyer falls below this standard, he or she has committed legal malpractice.

     One of the most common mistakes that lawyers make is failing to file a lawsuit before the expiration of the statute of limitations, but malpractice is not limited to missing filing deadlines.  While it may be easy to see that a lawyer who misses a filing deadline has committed malpractice, it can be much more difficult to determine whether a lawyer has fallen below the standard of care in other circumstances.  During the course of  litigation, for example, a lawyer has numerous decisions to make about drafting pleadings, conducting discovery, hiring experts, presenting evidence and a host of other matters.  A mistake in any one of these areas can be costly, but not all mistakes are malpractice.

     Lawyers have a substantial amount of leeway to make decisions concerning matters of strategy and the conduct of a lawsuit.  If the lawyer uses his or her best professional judgment and makes a decision regarding the conduct of discovery or the presentation of evidence that later proves to have been a mistake, that fact alone is not enough to make the lawyer liable for malpractice.  Although the lawyer’s actions may prove to be a mistake in hindsight, if those actions were reasonable under the standard articulated above, the lawyer will not be liable to the client.

      C.  Causation and Damages

     Even if the lawyer’s actions do fall below the standard of care, the lawyer will be able to escape liability for a mistake if that mistake does not result in any damage to the client.  It is not enough to simply prove that the lawyer was negligent.  A malpractice plaintiff must also prove that the lawyer’s error was a substantial factor in causing damage to the plaintiff.  This applies to transactional malpractice claims (drafting a will, contract, etc.)  as well as litigation malpractice claims.  (Viner v. Sweet, (2003) 30 Cal. 4th 1232, 1240-1241).

     To prove that the lawyer’s error was a substantial factor in causing the plaintiff’s damages, the plaintiff must show that he would have obtained a better result but for the lawyer’s actions.  Generally, in order to demonstrate he would have obtained a better result in the absence of the lawyer’s error, the plaintiff must engage in a “trial-within-a-trial.”  A trial-within-a-trial requires the plaintiff to first prove what should have happened in the underlying case.  (Mattco Forge, Inc. v. Arthur Young & Co., (1997) 52 Cal. App. 4th 820, 840)  If the plaintiff can prove the outcome in the underlying case should have been better, he or she must then prove that the lawyer's error caused the poor result.  If you can't prove you should have done better in the underlying case, you can't win the legal malpractice case.

     If you can prove you should have done better in the underlying case but for the lawyer's error, you are entitled to recover what the trier of fact determines you should have received in the underlying case.  For example, if another driver rear-ended you and the lawyer you hired failed to sue that driver within two years of the accident, you will be entitled to recover from the lawyer whatever damages you could have proved up against the other driver, as long as you can also prove you could have collected those damages from the other driver. 

      D.  Conclusion

     The practical upshot of this is that any potential legal malpractice case is only as strong as the underlying case.  A lawyer's mistake, even an egregious one, will not transform a weak personal injury case into a good legal malpractice case.  There are many factors to consider before filing a legal malpractice case and this short essay is not intended to be anything more than a very basic introduction.  If you believe that you have a malpractice case against your lawyer, you should be prepared to discuss what you believe the lawyer did wrong, how the lawyer’s mistake or mistakes altered the outcome of your case, and what damages you have suffered as a result of the lawyer’s conduct.