Avoiding Malpractice: Mistake Vs. Negligence
To some laypersons and even lawyers, acts made mistakenly and acts made negligently may seem similar. However, they are two entirely different things. Distinguishing negligence and mistake is important for purposes of determining professional malpractice. And, of course, no one is perfect, which is why every lawyer wants to minimize mistakes and ultimately avoid any allegation of malpractice.
In performing any job, any person may make a mistake. And lawyers are no exception. When lawyers do make mistakes, they may have consequences, both severe and insignificant. Claims for legal malpractice typically rest on the facts of each case. There are some basic considerations when trying to determine if a mistake made by an attorney rises to the level of professional malpractice and merits filing a lawsuit.
Thus, the first significant question in determining whether an error by an attorney constitutes professional malpractice is whether the attorney met the standard of care exhibited by other practitioners in the community. Any perceived mistake is always reviewed with the full benefit of hindsight without examining the circumstances experienced by the attorney at the time that the mistake was made. Attorneys make decisions that, at the time, they believe to be in the best interest of their clients. It is only later that a decision may seem ill-advised. Not every mistake made by a professional rises to a breach of the duty of care.
Even under circumstances where an attorney’s error is obvious, this mistake must have injured the client. The typical example of legal malpractice, i.e., negligence by an attorney, is where the practitioner fails to file a lawsuit before the statute of limitations expires. Even if this failure to file a lawsuit was inexcusable under the circumstances, it gives rise to a viable legal malpractice claim only if the client proves to a “legal certainty” that the case would have been won had the lawsuit been filed in a timely fashion. The client must also prove the amount of damages to which he or she would have been entitled and that this amount was collectible.
Legal malpractice cases are complicated and require participants to expend a large number of valuable resources such as time and money. A professional malpractice plaintiff must litigate two cases – the malpractice case and the underlying matter that gave rise to the suit. These cases typically require expert testimony to establish that the attorney’s conduct failed to meet the standard of care.
The difference between mistake and negligence may be determinative of whether an attorney is vulnerable to a valid claim of legal malpractice. While a mistake made by an attorney is typically not a valid reason to file a professional malpractice lawsuit, an attorney’s negligence may be a valid reason to sue a lawyer.
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