| Legal or attorney malpractice is described as a | | | | the plaintiff had been given the right advice, he might |
| lawyer's failure to render professional services with | | | | have spent less money in a transaction, or might |
| the skill, prudence, and diligence that an ordinary and | | | | have received more in the transaction. |
| reasonable lawyer would use under similar | | | | For legal malpractice in litigation cases, the need to |
| circumstances. | | | | prove actual damages requires the plaintiff to prove |
| Every time there is a "bad" or "unfortunate" case | | | | what he would have recovered in the "underlying" |
| outcome it is not necessarily legal malpractice. If an | | | | action, and that he was denied that recovery by the |
| attorney gave what turned out to be "bad" or "the | | | | actions of the lawyer. The jury instruction which is |
| wrong" advice, you cannot automatically accuse the | | | | read in California legal malpractice cases tells the jury |
| prosecutor of legal malpractice. No professional can | | | | that California law requires a plaintiff who establishes |
| ensure or promise a positive outcome for his client. It | | | | malpractice on the part of his or her attorney in |
| is important to remember that what creates liability is | | | | prosecuting a lawsuit must also prove that careful |
| the lawyer's failure to act in the manner the ordinary | | | | management of it would have resulted in a favorable |
| or reasonable lawyer would act in handling that | | | | judgment and collection thereof. |
| matter for his client. | | | | Because of this, the "new" attorney must litigate the |
| To successfully win a legal malpractice case, a plaintiff | | | | "case within the case": that is, he must not only |
| must prove that the lawyer's negligence was the | | | | prove that the first attorney was negligent, but also |
| legal cause of some actual damage to the plaintiff. | | | | that there would have been a recovery in the lawsuit |
| Damages may not be based upon sheer speculation | | | | the attorney was hired to prosecute. |
| or surmise, and the mere possibility or even | | | | If there was difficult or no liability in the underlying |
| probability that damage will result from wrongful | | | | case, there is little chance of a recovery in a legal |
| conduct does not render it actionable. | | | | malpractice case. If the defendant had no insurance, |
| It is not sufficient to allege that the underlying case | | | | or had no assets from which a judgment could be |
| should have settled for more or resulted in a higher | | | | satisfied, there is no actual damage that can be |
| verdict at trial. It is not sufficient to allege that "if" | | | | recovered in the legal malpractice case. |