Standard of proof in legal malpractice?

[anabanana]

What is the name of your state? FL

If you sue a lawyer for malpractice, you have to basically show that you would have won your case in the first place, if the lawyer had performed properly. But do you have to go to the extent of actually proving the original case entirely, or just show that it was likely, or that there would be a reasonable expectation of success, or what is the standard of proof?

It occurs to me that the defendants who were originally the opposition could be brought in to support a malpractice case, and since it's not their heinie on the line anymore, why would they object? They might even admit the original malfeasance.

Just wondering...

 

[seniorjudge]

What is the name of your state? FL

If you sue a lawyer for malpractice, you have to basically show that you would have won your case in the first place, if the lawyer had performed properly. But do you have to go to the extent of actually proving the original case entirely, or just show that it was likely, or that there would be a reasonable expectation of success, or what is the standard of proof?

It occurs to me that the defendants who were originally the opposition could be brought in to support a malpractice case, and since it's not their heinie on the line anymore, why would they object? They might even admit the original malfeasance.

Just wondering...

I don't agree with your basic premise.

If you are my lawyer and I want you to go with me to court to plead guilty to driving while intoxicated and you don't show up, that's malpractice. Obviously, I do not intend to win.

This is from a website of a lawyer who practices malpractice law:

The expert witness must explain (1) facts and (2) law and (3) legal ethics -- clearly and simply.

The jury must understand:
*what happened
*how it was/was not below the standard of an average lawyer
*why it was/was not ethically proper for it to occur.

ATTORNEYS ARE BEING CHARGED WITH FRAUD AND MALPRACTICE in handling their client’s cases. Such claims arise for a number of reasons, including misrepresentation, misappropriation of funds, failure to conduct proper discovery, failure to protect the statue of limitations for clients, neglect in the proper handling of a client’s case, failure of the lawyer to communicate settlement offers, and conflicts of interest that result in bad advice or paperwork.


In Missouri, The elements of a claim for legal malpractice are: "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff."

http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/952cc5db1ea36a7586256a450054ee41?OpenDocument&Highlight=0,checkett

 

[anabanana]

In your example, that's a criminal case, which is handled differently than civil matters. We have a constitutional right to adequate representation in criminal matters. If you get a loser lawyer in civil matters, your only recourse is another civil matter. Great ... just what I wanted, right?

The trouble is with the proximate causation. The courts have found that if the case was unwinnable to begin with, then even if your lawyer was a real train wreck, you've really not been harmed. This might be a state law issue, though. Here is a good summary of how it is in Florida:

"The "case within a case" is the case in which your attorney committed negligence. For example, the medical negligence case against a doctor for the failure to diagnose your breast cancer, which the court dismissed, for example, because your lawyer failed to name expert witnesses on your behalf in the time period set by the Court's scheduling order. This case -- the case your attorney should have properly handled for you -- is within the legal negligence case, that is your claim that the attorney committed negligence. In this "case within a case" analysis, the Court will require the person injured by the lawyer's malpractice to also show that if the lawyer had done her job professionally you would likely have won your case against your doctor for medical negligence."

Thanks for your link, though. The more the merrier, I say.