Getting a Recovery for Legal Malpractice; Proving Two Cases


If a lawyer makes a mistake, that may not be enough for a legal malpractice case.

Simply stated, there are two essential elements:

  1. The lawyer must have made an error which has prevented the client from recovery. 
  2. The client must prove that “but for” his lawyer’s mistake he would have recovered. 

On element 1, it is easy to determine if the lawyer made a fatal mistake.  The example of the missed statute of limitations is a classic and clear example of negligence.  Generally, there will be no defense to this.

However, element 2 can be a little tricky.  The client must prove that he could have recovered “but for” the lawyer’s error.

Consider this example:

The client sustains a fractured ankle in a motor vehicle accident where he was a passenger in a New York City bus.  Liability is clear against New York City Transit Authority.

The client hires the lawyer approximately 1 month after the accident.  The lawyer files a notice of claim on time, and the client appears for a hearing before NYCTA.

However, the lawyer fails to file suit against NYCTA within 1 year and 90 days.  He was under the mistaken impression that the 3 years statute of limitations applies.  The lawyer files suit 1 year and 120 days after the incident which is too late.  The case gets dismissed.

In this example, the client would have a case against his lawyer.  First, the lawyer made a fatal mistake in not filing the lawsuit on time.  Second, “but for” the lawyer’s error, the client would have recovered.

However, consider this variation:

Instead of sustaining a fractured ankle, the client has minor back sprain.  He goes to the emergency room and has no further medical treatment.

Again, the lawyer fails to timely file suit against NYCTA. 

There would not be a good legal malpractice case against the lawyer.  This is because element 2 is lacking.  The client would not have recovered against NYCTA because he did not have a “serious injury.”  This is an essential element in a motor vehicle lawsuit.  On the other hand, the serious injury of a fractured ankle was present in the first example.  Although it is eregious that the lawyer made a mistake, the client will not have a legal malpractice recovery. 

Therefore, in order to recover for a lawyer’s negligence, the client must prove that he would have recovered “but for” the lawyer’s mistake.

If you have been damaged due to a lawyer’s malpractice, please feel free to contact us for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/23/11, www.seitelman.com.

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