To Successfully Sue For Malpractice, Do You Need A "Winnable" Underlying Case?

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While the vast majority of licensed attorneys in every state and federal district are conscientious professionals who try to do right by their clients, occasionally, a matter may slip through the cracks, whether this is missing a court hearing or a pleading deadline, or even blowing through a statute of limitations entirely. If your attorney has mangled your personal-injury or negligence case, leaving you without any recourse against the person or party who originally caused you harm, what are your options—and what will you need to prove? Read on to learn more about the "case within a case" standard in legal-malpractice cases.

What do you need to prove to prevail on a legal-malpractice claim?

Although state laws can vary, in general, to win a legal-malpractice case against your former attorney, you'll need to demonstrate three separate factors: 

(1) You had a viable legal claim against a person or entity; 

(2) Your attorney failed to adequately prosecute this claim, violating your state's rules of professional conduct governing attorney competency; and 

(3) This breach of duty caused you damages. 

Even if your attorney was completely delinquent in pursuing a claim on your behalf, you'll be unable to recover unless you can show that even though you had a significant chance of winning your case, your attorney's actions (or inaction) compromised your ability to proceed. An attorney who refuses (or fails) to prosecute an "unwinnable" case is unlikely to be held responsible for malpractice or assessed damages.

What will you need to prove with regard to your underlying claim? 

This set of factors means your malpractice trial will take on the form of a "case within a case." You'll first be required to prove the basic elements of your negligence or personal-injury case to establish your likelihood of prevailing before a judge or jury. Then you need to prove that your attorney's actions are the driving factor behind your inability to recover from the personal-injury defendant. 

While one attorney experienced in malpractice law may be able to handle both facets of this claim, you may benefit by bringing a personal-injury lawyer on board. Your malpractice attorney can help demonstrate the basic elements of malpractice, while your personal-injury attorney can do a deep dive into the facts of your original case and set forth a clear and concise showing that, if not for your attorney's negligence, you would have been entitled to recovery from the personal-injury defendant.