Author Archives: Robert Ross
Punitive Damages in Attorney Malpractice Actions
WHAT ARE PUNITIVE DAMAGES? Punitive damages are a form of damages courts can order defendants (including defendant attorneys, in proper circumstances) to pay to prevailing plaintiffs. Punitive damages are monetary in nature, and represent amounts in excess of damages actually suffered by the plaintiff. Although punitive damage awards are not available in all cases (in fact,… Read More »
Damages in Attorney Malpractice Actions (Part 1)
Many plaintiffs wonder what kind of damages are available in legal malpractice actions. While knowing the available damages won’t help plaintiffs determine how much they will (or might) recover in any given case, an awareness of the available forms of damages can help injured plaintiffs understand the scope of a potential recovery. While this… Read More »
Understanding Damages in Legal Malpratice Cases (Part 1)
DAMAGES ARE A MANDATORY ELEMENT OF A PLAINTIFF’S CLAIM FOR LEGAL MALPRACTICE. If the plaintiff cannot demonstrate that (s)he has actually suffered damage (as a result of the attorney’s breach of a legally recognized duty), the plaintiff cannot prevail, even if the attorney did actually breach a legally recognized duty to the plaintiff. This is true… Read More »
When is the Lawyer’s Conduct NOT the Cause of the Plaintiff’s Damages?
NOT ALL WRONGFUL ACTIONS CONSTITUTE ACTIONABLE MALPRACTICE Losing a lawsuit is stressful, and plaintiffs often want to hold “someone” responsible for the loss. However, losing a lawsuit (without more) is not malpractice, and even if an attorney did act improperly in the course of representation, not every wrongful act or error constitutes actionable malpractice. Similarly,… Read More »
The “But For” Test for Causation in Legal Malpractice
WHAT IS THE “BUT FOR” TEST? The “But for” test is one of the two legal standards for proving causation in legal malpractice cases. This test requires the plaintiff to prove the defendant attorney’s negligent actions (or advice) actually caused the plaintiff to suffer damages or harm. Essentially, the plaintiff uses the facts of… Read More »
Causation in Legal Malpractice Actions
In order for a plaintiff to prevail in a legal malpractice action, the plaintiff must prove: 1. The defendant attorney owed a legally-recognized duty to the plaintiff; 2. The attorney breached that duty (under circumstances that were not legally excused); 3. The attorney’s breach of duty damaged the plaintiff; and 4. The attorney’s breach of… Read More »
Use of Expert Testimony to Establish a Lawyer’s Malpractice
WHEN IS EXPERT TESTIMONY NOT REQUIRED IN LEGAL MALPRACTICE ACTIONS? Legal malpractice lawsuits often involve expert testimony (often offered by attorney-experts) to establish the defendant lawyer’s breach of a duty to the plaintiff. Where the breach of duty is “clearly established” to a degree that no reasonable person could conclude the attorney was not… Read More »
Is a Lawyer’s Violation of Ethics Rules Always Malpractice?
The short answer to the question in the title is “No, an attorney’s violation of the California Rules of Professional Conduct (without more) is not always malpractice.” However, that’s not the end of the story. A lawyer’s violation of the rules of professional conduct may also constitute malpractice, if it involves a breach of a duty to… Read More »
How to Identify a Lawyer’s Breach of Duty to a Client
“Breach of a duty (owed to the plaintiff)” is a major element of a legal malpractice case, and like the other elements, the plaintiff bears the initial burden of proving breach of duty. BREACH OF DUTY IS NORMALLY A QUESTION OF FACT At trial, issues of law are normally decided by the judge, but… Read More »
Is Every Mistake a Lawyer Makes Malpractice?
Although some people may be surprised to hear it, the answer to the question above is: No. Not every mistake a lawyer makes will create malpractice liability. Mistakes happen, even to diligent people–and if an attorney gives mistaken advice, or makes an error in judgment, the lawyer has not necessarily committed malpractice. Analyzing whether a lawyer has… Read More »
