When you hire an attorney, you expect them to have your best interests at heart. However, attorneys make mistakes, whether intentionally or unintentionally, that can harm the client. Often, clients feel that the attorney has betrayed them and may be hesitant to hire another lawyer to hold the first accountable. The client has a duty to prevent further damage when they discover legal malpractice. Filing a legal malpractice claim against an attorney can be intimidating. They know the law as they are attorneys themselves and it can seem like a futile effort. It is important that you find an experienced legal malpractice attorney to be your advocate. They can assist in your efforts to remedy the situation and can help you meet the statue of limitations. (You can learn more about the statue of limitations for legal malpractice in Illinois here). In this blog post, we will discuss proving legal malpractice.
Case Within A Case
Legal malpractice lawsuits are unique in that they are really two lawsuits at once. This is often referred to as a “case within a case”. The client must prove that not only did the attorney commit legal malpractice, but that the outcome would have been different if not for the attorney’s mistake. For example, if you were involved in a car accident and the attorney failed to file the case before the statue, your attorney would have to prove the car accident injury and your attorney’s negligence. Not only will you need to call witnesses from the underlying accident (with the offending party no longer being liable typically as the attorney has destroyed the claim), but you almost always need the testimony of expert witnesses.
Even if legal malpractice has occurred, another important component is damages. If an underlying case is not worth anything, there might not be damages in the legal malpractice claim.
There is a difference between legal malpractice and an ethical violation. Legal malpractice occurs when the attorney has failed to perform their duties to standard. An ethical violation or bar complaint is when an attorney has violated the ethical code regardless of case outcome. Usually, the ARDC handles this type of complaint. Illinois law, however, provides that ethical rules can be used to inform a jury about what the standard of care is, and ethical breaches are therefore important to consider in any legal malpractice claims.