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The Costs of Malpractice Litigation

Clients who fail to receive the result they desire sometimes think a malpractice action represents an “easy solution” to the client’s dissatisfaction with legal services received. However, legal malpractice actions are neither easy nor inexpensive. In fact, the costs of a legal malpractice action often make malpractice litigation an unreasonable (and inefficient) response. A claim is worthwhile only where the facts reveal true malpractice.

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Even a brief examination of the costs involved in a legal malpractice action demonstrates why these actions are so costly and labor intensive:


Damages are a critical element of a legal malpractice case. Before an attorney can agree to pursue a claim of malpractice, the attorney will need to review both the client’s case against the alleged negligent attorney and also the client’s underlying claim against the person or entity–the one the attorney was representing the client on when the alleged malpractice occurred. Since the attorney must review both cases, in detail, to determine whether a malpractice actions exists, the cost of review and consideration is higher in a malpractice case. From the client’s perspective, this often means significant attorney fees out-of-pocket before the malpractice case is even filed.

The attorney’s review may also consider the additional question of “ripeness” – meaning whether the damages caused by the previous attorney’s allegedly wrongful conduct have reached completion, or whether the client might be better off (statutes of limitation permitting) waiting to file the lawsuit until the damages have occurred. The obligation to mitigate (lessen) damages also plays a role here, however, so evaluating ripeness can involve significant amounts of research–which often translates to additional attorney fees.


To prevail in a malpractice action, a plaintiff client must prove not only that his or her former attorney breached a legally-recognized duty of care, but also that damages resulted from the breach. This usually requires proof that (a) the client would have won the underlying action, and (b) the client’s loss of (or failure to prosecute) the underlying action was the result of the former attorney’s wrongful conduct.

In order to prove this, the client must file and win a lawsuit against the former attorney.

Essentially, the client (through counsel) must put on a sufficient case to “win” not only the malpractice lawsuit, but the underlying lawsuit also. This necessarily increases the cost of a malpractice action, because the client’s current attorney must research and prove not one but two separate sets of facts.


Expert witnesses are expensive to hire, depose, and utilize, and legal malpractice actions often involve several experts. In addition to at least one attorney expert (required to establish that the defendant attorney’s conduct breached applicable standards of care), the case may require additional experts to establish the client’s likelihood of success on the underlying claim. In the case of personal injury actions, this may require multiple doctors and medical experts as well as the experts required to present the legal malpractice claim itself. Experts in damages valuation (who may come from the fields of law, accounting, insurance adjustment, and other economic-related businesses and practice areas) may be needed to establish the client’s damages.

Far from being a “simple solution,” legal malpractice actions often involve substantial investments of time and financial resources. While this isn’t a reason to forego a claim if an attorney has legitimately breached a legal duty, resulting in harm, clients should evaluate their attorneys’ conduct in light of the potential costs of malpractice litigation. Did the attorney truly breach a legal duty, or did the client simply lose an adequately defended (or prosecuted) case? Did the client suffer real, measurable  damages, or is this merely a case of not liking the outcome?

If you believe you have a claim for legal malpractice, consult an experienced malpractice attorney in your area to seek an opinion. Many attorneys offer a “free consultation” or an initial telephone consult “off the clock.” Although an initial consultation can’t always give a definitive answer, it may help you evaluate whether or not your case is signifiant enough to merit additional research, and possibly filing of a malpractice claim.

© 2014 Ross Law



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