What is Legal Malpractice?  Do I have a case?

Aaron Morris, J.D.         

Just because you lost, even a case that seemed clear-cut, does not mean your attorney did anything wrong.  Every case is subject to an arbitrary judge or a jury that fails to understand the facts.  In every case, someone wins and someone loses.  That does not mean the loser received bad representation.

Legal malpractice arises when your lawyer's performance fell below the standard of care in the industry.  That is the first burden of proof; showing that the attorney was negligent.  But that is not the end of the story.  It is possible that your attorney was negligent, but it didn't cause you any harm.  To use a simple fact pattern to illustrate the point, assume that a defendant owes money under a promissory note, and has absolutely no defense.  If the attorney fails to show up on the day of trial, that is clearly negligent, but would the outcome have been any different if there was no defense to the money owing?  If not, then the defendant did not really suffer any damages.  In other words, the attorney's negligence was not the cause of the damage award.  The defendant would have a breach of contract action against the attorney since he or she failed to perform the duties promised, but there would be no legal malpractice action.

Some cases of legal malpractice are clear cut.  A client retains an attorney to file a personal injury action, but the attorney fails to file the complaint before the statute of limitations expires.  That is below the standard of care, and the attorney would be liable for the damages the client could have recovered if the action had been filed on time.  But many cases are far more subtle.  The attorney did not conduct sufficient discovery, and was missing some important evidence at trial.  Did that make the difference in the verdict?  Even if it did, was the attorney's failure to obtain that information below the standard of care?  An ethical attorney is constantly making cost/benefit determinations in order to keep down the legal fees.

In one case a client asked me to present a detailed litigation plan.  In the plan I presented, I listed depositions of just four witnesses.  Between the court reporter fees and my time, depositions are costly, so I had limited the depositions to only those witnesses I felt were crucial.  The client was stunned, and provided me with a list of 25 witnesses he wanted deposed, stating they were all essential to proving the case.  Through the next few months as the case proceeded, I managed to convince him to stick to my plan, and take only the depositions of the four witnesses.  We won the case, and were awarded every penny of the damages we requested, all without taking those additional 21 depositions.  That saved the client at least $50,000.  You can bet, however, that if we had not prevailed in the action, he would have blamed it on the failure to take those 21 additional depositions.  An ethical attorney must make those kinds of decisions, and it is not legal malpractice unless the decision falls below the standard of care.

Only an experienced Legal Malpractice attorney can determine whether an attorney's conduct fell below the standard.  We have that experience at Morris & Stone.  When you call, I may be able to determine from your description of what happened whether you suffered legal malpractice.  There is no charge for this consultation.  However, it may be necessary to review the file to make a proper determination if the facts are not so clear cut.  For this I must charge for my time, but if I determine that your former counsel committed malpractice, I will usually take the case on a contingency basis and credit you back the hourly fee.  Under this arrangement, you pay nothing unless we prevail.

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  He can be reached at (714) 954-0700, or amorris@toplawfirm.com.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.