Lawyers are duty bound to possess and to exercise that degree of care, skill, learning and diligence in undertaking to perform legal services for their clients as ordinarily and customarily possessed and exercised by practitioners in the same locality and field of law. This is a Duty of Competence is often referred to as the Standard of Care.
A lawyer’s failure to meet the standard of care is often referred to as Negligence. Negligence often presents itself as an act or an omission on the part of the lawyer. It can take the form of advice, services performed or the failure to take needed action. Not every act or omission causes harm or injury or damage to a client. Whether the negligence constitutes actionable Legal Malpractice depends upon a number of factors being met. It can be expressed as the formula Duty + Breach + Causation + Damages = Legal Malpractice.
Duty: A lawyer must exercise due care in giving advice and in acting on behalf of others, whether they have established a relationship with the client or is merely speaking with a prospective client.
Breach: The failure to act within the proper standard of care must be proved by Expert testimony from another lawyer, in almost all cases. There is often a difference of Opinion regarding the proper handling of a transaction, litigation or other legal matter. Not every error in judgment in hindsight is actionable if based upon reasonable research and investigation, and reasonable minds could differ on the matter in dispute.
Causation: This element of the cause of action for legal malpractice is the most frequent stumbling block and cause of an inability to prove the “case within a case” which is the burden of proof of the person suing for damages. One has to prove not just that a different result Could have been obtained (had the lawyer acted properly) but that a different result Would have been obtained and what that result would have been.
Damages: Not every error results in harm or actual injury. Speculative harm is not recoverable. Emotional damages are ordinarily not recoverable and the damages are measured by the loss of the right to damages or other remedy that was being sought in the “underlying matter”. This is how we refer to the transaction or litigation or other legal matter undertaken that is now being called into question in the legal malpractice action. In most circumstances one has to prove that the damages being sought were collectible.