What is Attorney Negligence?

G. Wiesen

Attorney negligence is an action or inaction that negatively affects the outcome of a legal case for the client of an attorney who commits the negligence. This type of negligence can sometimes be difficult to prove, and there are a number of things that must usually be proven to establish this type of negligence. Someone will usually have to establish an attorney-client relationship with an attorney charged with negligence and demonstrate that negligence occurred. He or she will then have to show a proximate relationship between the negligence and the negative outcome, and then show that actual damages occurred due to the attorney negligence.

Attorney negligence is often difficult to prove.
Attorney negligence is often difficult to prove.

Also called legal malpractice, attorney negligence is a somewhat complicated issue that can be difficult to prove. This is because attorneys must feel free to practice law in a way they feel is in the best interests of the client, without constantly second-guessing their actions for fear of later reprisal. If someone is charging an attorney with negligence, he or she will initially have to establish that the attorney represented him or her legally. Without establishing a previous attorney-client relationship, most cases of attorney negligence will be dismissed.

Attorney negligence refers to an action performed by an attorney that negatively affects the outcome of a legal case for his or her client.
Attorney negligence refers to an action performed by an attorney that negatively affects the outcome of a legal case for his or her client.

Once this is established, then the person must prove that an act of attorney negligence actually occurred. This can be a gross error in judgment, failure to file paperwork by a required date, allowing evidence to be entered without objection to benefit a client, and any other type of action that may be seen as negligent. Poor judgment that at the time was considered sound is often excluded, but major mistakes that were clearly errors at the time they occurred can constitute negligence.

If attorney negligence is established, then it must be proven to actually have a proximate relationship with the negative outcome of a case. For example, someone may prove that a lawyer failed to utilize a witness who could have greatly changed the outcome of the case. In order to truly prove negligence legally, however, it must be proven that this failure to use the witness would have otherwise changed the case. If the witness could have been easily discredited or if other evidence would have overwritten the testimony, then there is not necessarily a proximate cause between the negligence and the outcome.

Once all of this has been established, then a client suing a lawyer for attorney negligence must establish that actual damages occurred. If someone lost a lawsuit due to negligence, for example, then he or she must prove that had he or she won the case there would have been a large financial award. Otherwise the negligence may have occurred, but ultimately did not matter and damages may not be awarded to a client in a lawsuit. If enough cases of attorney negligence are brought against a single individual, it is also possible for further punishments such as legal disbarment to occur, though this is usually situational.

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Discussion Comments


@Vincenzo -- That may be why there is legal malpractice and the insurance adjusters and lawyers who deal with those claims are often located out of state or, at least outside of the market as they attorney under investigation.

A legal malpractice attorney working in his or her own market is a terrible idea. Wow. Talk about the unpopular guy at the party...


@Melonlity -- It might not be hard to find that an attorney has been negligent, but it is hard to find a legal malpractice attorney to run out and sue another lawyer.

Think about it. The legal profession is a fairly close knit one and you won't find a whole lot of lawyers itching to sue other attorneys. A legal malpractice attorney never knows when he might mess up a case. When that happens, other attorneys will line up to file suit against him or her.

And a legal malpractice attorney's turn in the barrel is never fun at all.


Attorney negligence isn't that terribly hard to prove. That is exactly why legal malpractice insurance is so expensive. If an attorney messes up a case, it is fairly obvious to both the client and the negligence attorneys the client hires to investigate the suit and decide whether to commence an action against another lawyer.

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