You know that you hire a lawyer when you want to sue someone, but what if he botches the case? Can you sue your lawyer for malpractice when he screws up? It isn’t too far outside the realm of possibility that your lawyer will cost you your case, but in some instances, you won’t have much recourse. Suing your lawyer for malpractice is a risky venture, even if you do have the ability. You are usually well-advised to handle the matter a different way, especially since the ABA isn’t usually much help.
The problem is that many people don’t do enough research when hiring a lawyer in the first place. Just because an attorney has ten years of experience in corporate law doesn’t mean that he’s any good at it. In fact, longevity in practice isn’t any indication at all of a lawyer’s abilities. You’re better off looking at his or her track record in the courtroom. For example, a woman in New Jersey was shocked about five years ago when she learned, after losing her child custody case, that her attorney had never been in a courtroom before. His law firm had been open for more than fifteen years, but none of his cases had ever made it past the filing stage. This is a big risk to take when winning means the difference between a large sum of money and an empty wallet.
In order to sue your lawyer for malpractice, you’ll not only have to prove that he didn’t represent you to the best of his or her ability, but also that the court case would have ended differently if you had been given proper representation. This can be difficult to substantiate because the law is often subjective, particularly in civil matters. The outcome depends largely on the mindsets of the jurors or judge, which will vary depending on the courtroom.
In order to prove that your case would have turned out differently, you will have to demonstrate that your lawyer failed to present evidence or otherwise acted in a manner unbecoming of an officer of the court. In most cases, your word won’t be sufficient to sue your lawyer for malpractice; the testimony of other legal professionals and witnesses must also be included in order to win.
Another problem that people often have with trying to sue their lawyers for malpractice is the fact the attorneys are, by nature, fairly clever when it comes to the law. Most have an arbitration clause in their contract which prevents their clients from suing them, regardless of their behavior. While you might win a monetary award in arbitration, there is a ceiling and it will be more difficult to convince an arbitrator than a jury. Before you sign a contract with a lawyer, make sure you understand all of the provisions. If you don’t have the right to sue, you might want to take your business elsewhere.
You should also know that very few lawyers (less than 50%) are protected by malpractice insurance. Most attorneys can’t afford to pay large settlements when they are sued by their clients, which means you won’t be able to collect on a judgment anyway. A civil suit must be filed against someone who has sufficient assets to pay the amount being claimed, so you might be out of luck before you even start the filing process.
And finally, even if your lawyer does have malpractice insurance, you might not be able to sue him for malpractice. Insurance covers a very strict range of incidents, and if your claim falls outside of those parameters, the insurance company isn’t going to pay. Your claim must be for something for which your lawyer is covered under his or her insurance policy; otherwise, there’s no point in filing a suit at all.
