When a Lawyer Does Not Do What a Lawyer is Supposed To Do
Lawsuits for legal malpractice are all about what the lawyer was supposed to do.
For a client to successfully sue his or her former attorney for legal malpractice, the client must first establish what a lawyer is supposed to do in handling a matter like the one the lawyer handled for the client. If the lawyer represented the client in a car accident lawsuit and the lawyer failed to submit court papers that resulted in the lawsuit being dismissed, the client in a malpractice lawsuit has to prove that lawyers in these types of lawsuits are required to submit these types of papers to the court. The client proves this by hiring a lawyer to provide an “expert opinion report” which states exactly what a lawyer handing a car accident lawsuit is supposed to do. (Note – this is the third lawyer hired by the client: the first was the lawyer who malpracticed by failing to submit the court papers; the second is the lawyer hired to sue the first lawyer for malpractice; and the third is the lawyer who acts as expert witness.)
After proving that the lawyer did not do what the lawyer was supposed to do, the client must then prove that the client was financially harmed because the lawyer did not do what the lawyer was supposed to do. In our lawsuit example, the client would have to prove that if the lawyer did submit the papers to the court, the client would have won the lawsuit and collected a chunk of money from winning the lawsuit.
The client proves this by having a trial on a “case within a case.” This is what it looks like. The client and the malpractice lawyer go to trial and first put the expert witness on the witness stand who testifies that lawyers handling car accident cases are supposed to submit the papers, and that the lawyer being sued failed to submit the papers. Then the client’s malpractice lawyer puts on witnesses and evidence to prove the car accident case. The jury decides first if the lawyer being sued messed up by failing to submit the papers. If the jury decides that lawyer messed up, then the jury decides how much money to award the client for the car accident case. The lawyer that messed up, or the lawyer’s insurance company, pays the lawyer’s former client the amount of money the client would have received if the lawyer had properly handled the car accident litigation.
Not every legal malpractice case deals with a situation where a lawyer messed up a lawsuit. The lawyer may have failed to properly handle a transaction, let’s say, a real estate deal. Suppose a seller sells real estate to a buyer who pays $100,000. The buyer receives a deed and the lawyer is supposed to record the deed in the county clerk’s office. The lawyer fails to do so. The seller, an unscrupulous skulduggerer finds another buyer a week later and sells that buyer the same property for $80,000. The seller gives the second buyer a deed and the second buyer’s lawyer does what a lawyer is supposed to do and records the deed with the county clerk. The seller beats a fast path out of town with a cool $180,000 while the first buyer legally is not the owner of the property because the first buyer’s lawyer did not do what the lawyer was supposed to do.
In this type of legal malpractice case, the unhappy client hires a legal malpractice lawyer. Together, they hire an expert witness lawyer to write an expert opinion report that says lawyers are supposed to promptly record deeds and that, had the client’s lawyer done what a lawyer is supposed to do, the client would be the owner of the property. Instead, the expert explains, the buyer paid $100,000 and received nothing. In that case, if the jury agrees that the lawyer did not do what lawyer is supposed to do by failing to record the deed, the jury will award the client $100,000 which is how much the client lost as a result of the lawyer’s failure.
Do you think your lawyer failed to do what a lawyer was supposed to do in a legal matter you were involved with? Contact us to discuss.