When someone hires an attorney to perform legal tasks, the attorney has a duty to perform their tasks competently. When attorneys breach this duty and make mistakes that a competent attorney would not make, they can often be found liable for legal malpractice. Legal malpractice claims often arise when attorneys miss deadlines, such as the statute of limitations, that bar otherwise meritorious claims.
Elements of a Legal Malpractice Claim
In an action for legal malpractice, it is necessary for the injured client to prove four elements. First, the injured client must prove the presence of an attorney-client relationship that establishes a duty between the attorney and the client. Proving this element is usually fairly straightforward, particularly if it can be proven that the lawyer and client entered into a retainer agreement and that the lawyer did any work on behalf of the client.
The second element is proving that the attorney breached his or her duty to the client. An attorney is supposed to use a reasonable degree of care when representing a client. In cases where a lawyer missed a deadline, or if an attorney takes money that was meant for a client, it is usually easy to prove that the attorney breached their duty to their client. In cases where the breach of duty is not so obvious, it may require expert testimony to establish that the attorney breached his or her duty to their client. However, when the only evidence of a breach of duty is a bad result in the case, that fact alone is usually insufficient to prove a breach of duty.
Proving Causation and Damages
The third and fourth elements are causation and actual damages. Proving damages can be the most difficult element for a client to prove. Damages are not presumed in a legal malpractice suit. It is necessary for a client to show that but for the negligence of their attorney, they would have been successful in the underlying case and obtained damages. This is often referred to as “the case within the case”. Therefore, if a case involves suing an insolvent defendant, a malpractice action may fail, as it is difficult, if not impossible to collect damages from an insolvent company.
In cases involving objective injuries, such as broken bones or nerve damage, it is relatively easy to prove damages. Cases involving subjective injuries such as whiplash, are difficult to prove, and therefore are not as likely to lead to a finding of damages. In criminal cases, it is typically even more difficult to prove damages, as it is usually necessary to show that that a client would have been found not guilty, but for the attorney’s breach of duty. This is typically a difficult obstacle to overcome.
Statute of Limitations on Legal Malpractice Claims in Illinois
In Illinois, a legal malpractice claim must be brought within two years of when the client knew or should have known about of the injury. However, all claims must be filed within six years of an injury, regardless of when they became aware of the injury.
Malpractice Insurance in Illinois
In Illinois, attorneys are not required to carry legal malpractice insurance. A 2002 survey conducted by the Illinois State Bar found that 20% of attorneys and up to 40% of solo practitioners lack malpractice insurance. This is obviously a potential issue for many people filing a legal malpractice case.
If you are considering filing legal malpractice against a lawyer, an attorney experienced in litigating legal malpractice claims can help you determine whether or not you have a viable cause of action.
This information is presented by Salvi & Maher, LLC.