THE TRIAL WITHIN A TRIAL: MALPRACTICE LITIGATION

Written by Justin O’Connell, CFLS^*

Even where an attorney acts with utmost skill, a frustrated or unhappy client might target their attorney as a source of redress for their perceived economic harms. Family law clients often encounter adverse outcomes in litigation and frequently hold strong beliefs that they should have prevailed. They might believe they would have prevailed but for the judge getting it wrong, but for the other party lying, or but for their attorney making a mistake. This perception that external factors affected an otherwise meritorious case is the motivation for a client to seek relief after an adverse outcome. If the judge got it wrong, then appeal. If the other side lied, then move to set aside the ruling. If the client’s attorney made a mistake, then sue for malpractice.

The procedural method of proving attorney malpractice is explored below. A litigator should be aware not only of the standards by which they should practice law, but also of the method by which attorney negligence is proven. Such awareness ensures a litigator is providing the level of service their client deserves while also protecting themself from subsequent claims. The below discussion addresses attorney malpractice claims that arise from adverse outcomes during litigation, whether from a court decision or from a settlement with which a client is unhappy.¹

The elements of a cause of action for negligent attorney malpractice are: