Proving Legal Malpractice
Legal malpractice claims are not your run-of-the-mill lawsuits. They are complicated.
The complexity develops from the law that basically requires that legal malpractice litigation address two lawsuits in one.
The two lawsuits are:
- Your attorney committed professional negligence or other legally recognized wrong; and
- What you would have recovered if your attorney had not committed professional negligence or the legally recognized wrong.
In addition to proving these two lawsuits, you have to prove collectability.
These standards mean you cannot recover simply because your attorney messed up. You also have to prove that you would have recovered but for his negligence, and additionally you must prove how much you would have collected from the defendant in the case your attorney mishandled.
If your attorney messed up your lawsuit, the second part involves showing that you would have been able to win the case your attorney originally handled. This means if we take your case and sue your lawyer, we have to prove what not just that your attorney erred, but we also have to prove your entire case that your attorney would have tried but for his mistake.
If your attorney messed up a transaction, the second part involves being prepared to prove in court what you would have recovered if the transaction had been handled properly.
If your attorney caused you wrong by taking your money out of trust, breaching confidences or other improprieties, the second part involves what you would have had but for your attorney’s actions.
The third part then involves proving that you could have collected money from the third person your originally were going to sue or who originally owed you money. Generally, this can be proven by showing proof of insurance, bank accounts, personal property or other assets. The value of your legal malpractice case in most cases is greatly impacted by this “collectability” element.
To prove the first part—that part where your attorney messed up-- generally requires hiring an attorney to testify as an expert witness to establish that your attorney committed professional negligence or some other legally recognized wrong.
The second part means bringing in all the witnesses, experts, exhibits, etc., that would have been used in your first case that unfortunately now has problems created by your attorney.
To protect your legal malpractice case, it is very important that you to preserve as much information from your original lawsuit or transaction as possible, including all pictures, records, e-mails, faxes, letters and other communications from your malpracticing lawyer. These items can prove invaluable in establishing the first part of your malpractice claim and sometimes the second part.Contact a Tennessee Legal Malpractice Attorney
With over 20 years experience, attorneys Ed Graves and David Day can help you put together a solid case to prove legal malpractice. We understand just how difficult it is to be wronged by an attorney and the many ways it can affect your life. For that reason, we are committed to helping you obtain justice. Attorneys Edward M. Graves, Jr., and David Day are board certified as Diplomates in the field of Legal Malpractice by the American Board of Professional Liability Attorneys (which is recognized by the American Bar Association as the certifying board for this area of law in the United States).