Legal Malpractice cases are among the least common types of cases that are pursued. The reason for this is simple. These claims generally require an expert witness (attorney), to testify against the defendant attorney and the vast majority of attorneys will not participate in such actions. Frequently, they are familiar with the defendant attorney which can create a conflict that prevents him or her from taking the case.
These cases are often complex and require proof that not only did the attorney breach his duties to the client, but that the client suffered some damage.
It is this element that is most difficult to prove. It essentially requires that within the malpractice case itself, the client must prove that he or she would have won the underlying case and there must be a showing as to what the damages would have been in the underlying case.
For example, if the defendant attorney in an automobile negligence case had allowed a statute of limitation period to expire and the underlying case was dismissed, in the legal malpractice case you would have to prove the attorney's negligence, the negligence of the defendant in the underlying case and the amount of money that you would have won in that case.
It's like trying two cases at once. These cases can be extraordinarily expensive and under most circumstances, multiple experts will have to be utilized and the costs are often prohibitive.
