Legal Malpractice:  It Is a Case Within a Case

We routinely handle legal malpractice cases. Candidly, there are only a handful of law firms in Indiana that are willing to file legal malpractice claims against other attorneys—and often, colleagues—when an attorney fails to do what a reasonable attorney should have done in that situation on behalf of their client or former client. It is not a popular area of law due to the “scorched earth” stance that is sometimes taken by the defense when a legal malpractice claim is pursued.

Lawyers are responsible for policing their own profession. We take that duty seriously. We also recognize the serious nature of any claim brought by a client against their attorney. However, the practice of law in general — and litigation in particular — is unpredictable and not every bad outcome is the result of an attorney making a mistake. Attorneys make judgement calls many times a day and not every decision is going to be perfect. We carefully scrutinize any claim for legal malpractice against the standard required under Indiana law that each lawyer is required to act according to a “standard of care” common to all practicing attorneys. When a lawyer fails to live up to that standard, and his client’s case is lost or impaired as a result, then the client has the right to bring a claim for malpractice.

It is critical within our justice system that there be attorneys who are willing to pursue malpractice cases in order to hold wrongdoers accountable for their negligence and failures. We have represented clients in legal malpractice actions in all different areas of law. Imagine being catastrophically injured or having a loved one die in a car wreck and then having the attorney you hired to handle that claim fail to file your lawsuit in a timely fashion. Imagine having your entire case dismissed because of it and being left with no recovery for your life-altering injuries or compensation for the loss of a loved one who passed away in the collision. Unfortunately, these types of errors can—and do—occur. And when they do, the person deserves to be made whole and the attorney needs to be held accountable for their negligent actions or inactions.  

The elements of legal malpractice under Indiana law are as follows:

• employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” (Solnosky v. Goodwill, 892 N.E.2d 174, 177 (Ind. Ct. App 2008).)

Importantly, an attorney’s duty to exercise ordinary care and skill extends to intended beneficiaries. (Ferguson v. O’Bryan, 996 N.E.2d 428, 432-33 (Ind. Ct. App. 2013).)

If a client’s attorney (or former attorney) provided representation to you that was substandard because he or she did not do what a reasonably prudent attorney would have done in that situation to accomplish the goals of the representation, and to appropriately protect the interests of the client, his or her representation may have failed to meet the appropriate standard of care required of attorneys practicing in Indiana. If, and when, that occurs, the attorney is liable; further,  the law firm where he or she worked at the time is also liable for the professional negligence of the attorney.

Legal malpractice cases are unique and complicated. Even if malpractice is clearly established, it becomes our duty to show the outcome would have been different if the claim or case had been handled differently. This means that we must take the underlying case to trial (or be prepared to take it to trial) in order to prove all the elements of the claim that the lawyer should have proven if he or she had done his job properly. This, essentially, makes the handling of a legal malpractice case what we refer to as “a case within a case.” We must prove the underlying case to make a recovery in the malpractice action. In the scenario above with the automobile crash, it is easy to show that an attorney missed a deadline.  The challenge is demonstrating what would likely have happened if the personal injury or wrongful death case had been taken to trial. 

Unfortunately, it is a common tactic for the attorney who is being sued for legal malpractice to suddenly do an about face regarding the underlying case and to suddenly contend that the case they were handling for the former client had a diminished value or was problematic in numerous ways—all in an effort to attempt to minimize his or her own potential damages in the malpractice action. While all litigation is adversarial by nature, with legal malpractice cases, the vitriol seems to sometimes increase exponentially due to the pending allegations made against the attorney’s actions or inactions, past conduct, and ultimately, his or her reputation. 

If you believe your attorney has handled your claim negligently, we suggest speaking with an experienced legal malpractice attorney to see whether the conduct truly rises to the level of legal malpractice.

We have decades of experience in handling legal malpractice cases in a variety of substantive areas. We stand ready, willing, and able to pursue these types of claims on behalf of those who have been wronged. We believe in justice—and in the justice system—to hold all individuals accountable for their actions, even attorneys.

If you have been wronged—let us help you to make it right.

Give us a call at (317) 269-3500 to speak with one of our experienced legal malpractice attorneys today about your case. We stand ready, willing, and able to represent your interest and receive the compensation you deserve.

Contact us today!