Andrew Rubin, Esq.

How do you prove a legal malpractice case?

In previous posts we have covered many examples of alleged an actual instances of attorney malpractice in New Jersey. Sometimes the underlying causes of the malpractice may seem obvious; at other times, it may be harder to discern. This post addresses the standard by which courts decide whether an attorney's behavior meets the threshold to qualify as legal malpractice.

In a key sense, proving legal malpractice is similar to proving a case of negligence: both causes of action require the plaintiff to show that the defendant owed a duty of care to the plaintiff and failed to uphold that duty. As you may suspect, however, a legal malpractice action involves more than a simple showing of negligence.

When it comes to the standard of care, for attorneys that standard is that they need to exercise the degree of knowledge and skill that other attorneys possess – either generally, or who specialize in the same area of law that the accused attorney does. In this sense, the law actually holds the attorney to an implied representation that he or she possesses the requisite level of knowledge and skill. So a legal malpractice lawsuit can actually be seen as a blend between a negligence claim as well as one for misrepresentation.

 

When it comes to examining the legal standard of care in the context of a legal malpractice lawsuit, it is important to remember two things:

Losing a client's case is not in itself evidence of legal malpractice. As long as the attorney exercises the requisite standard of knowledge and skill in the profession, then even if the client does not receive a favorable outcome that will not be sufficient grounds to allege malpractice.

Proving that the attorney failed to live up to the requisite standard of care is not something that a jury can determine on its own. Instead, expert testimony – frequently from other attorneys – will be needed to provide the jury with the information it needs to make that decision.

As you can see, a legal malpractice lawsuit has characteristics similar to that of a medical malpractice action, and requires the plaintiff's attorney to understand not only basic legal theories such as negligence but also to have a firm grasp of New Jersey rules governing attorney behavior and how to use expert testimony effectively to persuade a jury.

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