Sometimes the biggest hurdle to success in litigation is the most obvious: You can’t get blood from a stone. In litigation this means that even if you have a great case, a sure winner, you can still lose if your opponent doesn’t have the money to pay (or spent it all on their losing lawyers).
Here’s an interesting example of a legal malpractice case revolving around a law firm’s failure to listen to the client’s instructions about how much the client could afford to pay. The lawyers kept billing and billing, then “won,” only to learn that the judgment was worthless against the deadbeat defendants. That creates an interesting malpractice theory — the lawyers won, but they really lost in practical terms. Of interest to me is that, given the numbers in play for this malpractice case, it looks like someone’s making pretty much the same mistake again: Even if the client “wins” this time, the numbers look like a loss in practical terms.
Legal malpractice cases are hard to win for a variety of reasons. First, any malpractice case, including medical malpractice, can be fairly complicated and expensive, requiring expert testimony and usually lots of motions and discovery.
Second, having been burned once, most clients are reluctant to wade back into the legal system. Many clients assume the system is rigged for lawyers, and sometimes it actually is.
Third, the issues to prove in a legal malpractice case can be factually complicated — calling for analysis of judgment calls that aren’t as clearcut as even medical malpractice might be. The “easier” cases tend to involve missing deadlines or making some rookie mistake. Harder cases involve situations where the lawyer had to make a judgment call that different lawyers might agree or disagree with or it’s not clear how things would have turned out, even if the lawyer had done things perfectly.
Fourth, to win a case, you usually have to prove what would have happened differently without the mistake, and that it would have netted a better result for the client. If the client still should have lost the case anyway, there’s no malpractice.
Fifth, sometimes the client’s damages can be tough to prove or don’t amount to enough to make the time and money of pursuing malpractice case worthwhile. A client who was advised to plead guilty and pay a $1,000 fine isn’t going to find a lawyer willing to take on a malpractice case that may only be worth $1,000 if you prove the lawyer should have fought the case (and probably spend more). If there’s a potential ethics violation, you might make a complaint to the Bar instead, but most Bars take few incompetence cases and their concern isn’t to make money for you. Continue reading