The Expert Podcast

Hi, this is Dave Pelligrinelli, a licensed private investigator and certified civil court mediator. We do a lot of mediation in court. Many times, a plaintiff or defendant in a court has some type of dispute with their own attorney, thinking their attorney did something wrong. They didn't handle the case right, maybe they made a mistake or an error, and you want to sue them for malpractice. Just like medical malpractice, there's a process for doing that.

So how can you prove a case or bring a case of legal malpractice? Maybe you have an attorney that you think did something wrong.

First of all, if you're going to sue an attorney for legal malpractice, you have to have another attorney to represent you. Technically, you can do a case what's called pro se, meaning that you don't need an attorney. However, it's going to be very difficult to win against an attorney if you don't have your own attorney.

You're going to need an attorney. First of all, you're going to have to find an attorney that's willing to sue another attorney. They're all in the same industry, they're all in the same profession, so unless it's a very egregious case, you may have difficulty finding an attorney. You can check out our website to get some good suggestions on how to find an attorney to take your case of any kind. Also, we offer consultation if you want to get some one-on-one advice for your particular scenario.

The second thing to keep in mind is that many what you would call errors or mistakes or things that happened in a case are very subjective. An attorney can make the argument that, in hindsight, it may have been an error, but they genuinely believed in good faith that what they were doing was correct. Just because you lost your case doesn't mean it was malpractice. If they did something like miss a deadline or file the wrong paperwork, you may have a claim for damages. But even in those cases, courts and juries understand that people make mistakes. You have to quantify what it is.

The practical obstacles to suing and winning for legal malpractice are much higher than suing and winning against somebody who crashed into you and broke your arm in a car crash. It's easy to see the cause and effect of a mistake in driving, a drunk driver, or an employer with a workman's comp claim. An attorney can make the argument that they did what they believed to be in your best interest at the time.

There's a big difference between a jury looking at an employer that left some hot chemicals and somebody burned their arm, which is obviously a mistake, versus an attorney making a decision in a court case. I'm not saying to disregard any bad acts by an attorney, but also take it with a grain of salt. Many times, in hindsight, after you've lost a court case or had adverse actions, it's easy to say the attorney made a mistake. They may have made a mistake, but it's a very difficult process to go through.

For the most part, attorneys mean well. They're like anybody else; some are good, some are bad. But even the bad ones aren't doing things on purpose to hurt people; they may just be overlooking. Be aware that it's a very hard uphill battle. You're going to have a presumption that the attorney tried to do the right thing. Remember, the other people involved in the case, like the judge, are attorneys. They're going to know what happens with attorneys and lawyers, not just what is seen from the layperson's point of view.

If you do have a genuine case of an attorney making a mistake, a good and honest attorney will admit it, file it with their insurance, and they have errors and omissions insurance to cover that. If they don't do that, they might honestly believe that what they did was correct and will argue that against you in court. You'll need a very good lawyer who can articulate your position and arguments, so the judge and jury see your point of view. Make sure you have good evidence to back up your claims.

Thank you for watching. Remember, you can access live one-on-one personal consultations with a licensed private investigator, licensed commercial insurance broker, licensed certified real estate title examiner, and certified civil court mediator. If you need to talk to an expert in any of these fields, or even a licensed building general contractor, click the link below at actualhuman.com and arrange a live one-on-one session for undivided attention and expert advice about your situation. We’d be glad to help.