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Legal Malpractice Defined
To successfully win a legal malpractice case, a plaintiff must prove the lawyer's negligence was the legal cause of some actual damage to the plaintiff. Damages may not be based upon sheer speculation, mere possibility or even probability that damage will result from wrongful conduct does not render it actionable. It is not sufficient to allege the underlying case should have settled for more or resulted in a higher verdict at trial. It is not sufficient to allege that "if" the plaintiff had been given the right advice, he might have spent less money in a transaction, or might have received more in the transaction.
For legal malpractice in litigation cases, the need to prove actual damages requires the plaintiff to prove what he would have recovered in the "underlying" action, and that he was denied that recovery by the actions of the lawyer. The new attorney must litigate the "case within the case". This requires that, he must not only prove that the first attorney was negligent, but also that there would have been a recovery in the lawsuit the attorney was retained to to prosecute or defend. If there was difficult or no liability in the underlying case, there is little chance of a recovery in a legal malpractice case. If the defendant had no insurance, or had no assets from which a judgment could be satisfied, there is no actual damage that can be recovered in the legal malpractice case.
What Is Legal Malpractice?
Legal malpractice is defined as any negligent or wrongful act committed by an attorney that causes damages to his or her client.
Legal malpractice occurs when a lawyer acts in a negligent manner or fails to perform in accordance with acceptable standards when providing legal advice or representation. If you have questions about a specific incident of possible legal malpractice, call 410-486-1800.
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