Legal Malpractice Overview

California law defines legal malpractice as an attorney’s negligence or failure to use the skill and care required for the type of case he/she handled. The level of skill and care required is sometimes referred to as the “standard of care.”

Generally, attorneys fall below the standard of care if their advice and actions were so legally deficient when given that these circumstances demonstrate a failure to use the skill, prudence, and diligence required by attorneys of ordinary skill.

An attorney is liable for malpractice when his/her negligent investigation, advice, results in the loss of the client's deserving claim. 

Additionally, an attorney may be held liable for his failure to obtain a legal specialist’s services when required by the case.

It is essential to understand that an attorney is not negligent just because his/her efforts were unsuccessful, or an error was made that was reasonable under the circumstances. An attorney is not liable for every mistake he/she might make. An attorney is not an insurer of the soundness of opinions or the validity of a contract or instrument that he/she is hired to draft. Likewise, an attorney is not liable for errors as to questions of law on which reasonable doubt may be entertained by well-informed attorneys.

Statute of Limitations

California Code of Civil Procedure section 340.6 provides a one-year filing requirement with certain exceptions that allow up to four years to file. The statute is tolled or suspended where the client has not suffered damage; or where there is continuing representation by the attorney; or where the attorney is concealing material facts and in cases where the client has a legal or physical disability which prevents filing sooner.

One recent case held that the statute will commence as against an attorney who is yet the attorney of record when the client knows or should understand that the client is not going to receive further legal services. This is a potential hazard for the client who might be looking for a new attorney while believing that the statute of limitations will not commence to run until a formal substitution replaces the offending attorney.

The application of this statute is complicated and generally requires the assistance of legal counsel.


A client has the burden of proving that a better result would have been obtained had the attorney acted as a reasonably careful attorney. Additionally, the client must prove that the claim was collectible. The measure of damages is the difference between what was recovered, if anything, by the client and what would have been recovered but for the attorney’s wrongful act or omission. Where the claim deals with the result of a trial, either by a judge or jury, then, to proceed against the attorney, the client needs to retry the case and offer the additional evidence omitted. This is known as a “trial-within-a-trial.”

Do You Have a Legal Malpractice Case?

Legal malpractice can oftentimes be difficult to recognize. Many times, an attorney's malice or negligence is simply perceived as an unfavorable outcome. This is why so many who unknowingly endure the damages of an attorney's failure do not go on to file a malpractice suit. The key thing to remember is that a legal malpractice exists only when you can prove that there was failure on the attorney's part and that it resulted in proven collectible damages.

If you believe you have a legal malpractice case, it is wise to contact an attorney who specializes in such cases. With the help of such an attorney, you can rest assured your case is presented to the court in the most favorable manner, thus increasing your likelihood of securing compensation.

What Are Your Rights If There Are No Real Collectible Damages But Malpractice Exists?

When there are no real collectible damages existing, you do not have a meritorious legal malpractice case. This would apply even if you are able to prove that your lawyer failed to meet deadlines for filing your claim with the court or if you prove that minimum standards for competence were not met. For example, if your attorney failed to timely file a lawsuit for bodily injury surrounding an auto accident and the defendant was uninsured, and of ordinary means, you would be unable to pursue a malpractice action as against your attorney unless you could show that the damages were in fact collectible, which is unlikely.

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