Errors During Trial

One of the most difficult types of legal malpractice to prove is when an attorney is charged with committing professional negligence at trial.

The reason for this difficulty is that a trial is a fluid thing. The intensity of each case goes up and down with each sentence spoken, each exhibit admitted and each emotion shown. Attorneys frequently change their trial strategy during the course of a trial simply because of such things as their feelings about a juror, a ruling from the judge, or poor performance from a critical witness.

Judgment Calls

The law gives attorneys a defense based on “judgment calls.” Judgment calls allow an attorney to change how things are going, decide not to use an exhibit or a witness or refuse to ask questions previously covered with a witness.

Judgment calls, however, do not excuse an attorney from using critical evidence needed to establish your case and get it to the jury. In every case, in order to have a chance to win, an attorney must present certain minimum amounts of evidence established by law. For instance, to prove a client’s injuries in a car accident case, an attorney either will need a stipulation or agreement from the other attorney or will need to provide expert testimony through a doctor or other appropriate health care provider. Failure to do so may constitute legal malpractice.

Failure to Prepare the Case

Another common form of legal malpractice at trial involves failure to prepare the case. For instance, if a witness has critical information that is helpful to the case and the attorney either fails to call the witness, fails to subpoena the witness, fails to properly prepare the witness before trial, fails to properly prepare examination of the witness in advance of the court date or fails to properly ask the witness appropriate questions during the trial, that attorney could potentially be liable for legal malpractice if the case could have been won or damages could have been more properly addressed, but were not.

Failure to Know the Rules of Procedure and the Rules of Evidence

Trial attorneys are required to know the rules of civil procedure and the rules of evidence. Failure to know and follow these rules may potentially constitute legal malpractice if the attorney’s lack of knowledge or use of the rules would have caused a different result.

There are many other factors—too many to list—which can potentially fall within the “judgment call” of a lawyer resulting in no malpractice claim, or which may fall outside that defense allowing for a legal malpractice claim to proceed. Consult a legal malpractice specialist to determine which category your case may fall into.

Contact a Qualified Legal Malpractice Lawyer

With over 35 years experience, attorney David Day can help you put together a solid case to prove legal malpractice. We understand just how difficult it is to be wronged by an attorney and the many ways it can affect your life. For that reason, we are committed to helping you obtain justice. Attorney David Day is board certified as Diplomate in the field of Legal Malpractice by the American Board of Professional Liability Attorneys (which is recognized by the American Bar Association as the certifying board for this area of law in the United States).