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How can a prospective client tell if he has a legal malpractice claim?

I often receive phone calls and emails from people who believe that they have a legal malpractice claim against their current lawyer. Most of these claims are not malpractice claims, often because the underlying matter or lawsuit is not finished.

So, someone calls and says that her lawyer missed court dates, forgot to take a deposition and did not disclose an expert on time. My question is this: “How much money did you lose because of that alleged mistake by the lawyer?” Very often, the answer is (a) the case is still pending and I hired a new lawyer to fix the mistakes of the former lawyer or (b) I settled the case and received a settlement payment.

If the answer is “a”, there is no legal malpractice case as this time, although there may be a case in the future.

If the answer is “b”, there may be a case now, but we have to prove that without the purported error by the lawyer the client would have received a larger recovery. This can be very difficult. The defendant will argue that our client’s damage claim is speculative.

Rule of Thumb – if your case is still going on, you may not have a legal malpractice claim. If the case is finished, we may be able to help you.

Ed Clinton

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