 Elements of Legal Malpractice FAQs
 What do you mean by “elements”?- What do you mean by “preponderance of the evidence”?
- What are the elements of a claim of legal malpractice?
- If I hired the lawyer to represent me, is that enough to satisfy the
duty element?
- How can I prove that my lawyer was negligent?
- How do I prove that my lawyer’s negligence caused me to suffer financial harm?
1. What do you mean by “elements”?
In any civil claim, elements are the component parts that the plaintiff has the burden of proving by a preponderance of the evidence. If the plaintiff fails to prove each element of the claim, then the plaintiff cannot prevail on that claim. In a typical negligence claim, the elements that the plaintiff must prove are duty, breach, causation, and damages.
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2. What do you mean by “preponderance of the evidence”?
That mouthful of a phrase is legalese for proving “more likely than not” that something is true. To use a venerable football analogy, most people have heard of proof “beyond a reasonable doubt,” which is the burden of the prosecutor in criminal cases. If proof beyond a reasonable doubt is like scoring a touchdown, then proof by a preponderance of the evidence is like moving the ball past the 50 yard line. In a civil case, most of the time the burden is the preponderance standard.
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3. What are the elements of a claim of legal malpractice?
They are :
- duty – that the lawyer owed some duty to the client;
- breach – that the lawyer breached the standard of care (i.e., the lawyer was negligent);
- causation – that the lawyer’s negligence caused the client to suffer some harm; and
- damages – the amount that will compensate the client for the harm caused by the lawyer’s negligence.
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4. If I hired the lawyer to represent me, is that enough to satisfy the duty element?
Yes. Sometimes the duty element is described as the existence of an attorney-client relationship. If you hired the lawyer to represent you, then you had an attorney-client relationship, and he or she owed you all the duties that a lawyer owes to a client, including the duty to use reasonable care.
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5. How can I prove that my lawyer was negligent?
In legal malpractice cases, the plaintiff must present the testimony of a lawyer, who is willing to give the professional opinion that the defendant lawyer’s conduct breached the required standard of skill, care, and diligence to which attorneys are expected to adhere. Even though this is a legal requirement, one need not be a lawyer to understand that there are certain things lawyers should not do while representing their clients.
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6. How do I prove that my lawyer’s negligence caused me to suffer financial harm?
The answer to this question is frequently the most difficult aspect of a legal malpractice case. In its simplest nutshell, if the lawyer’s negligence occurred while representing the client in litigation, then at trial we must prove (by the preponderance of the evidence, as discussed above) that had the lawyer not been negligent, then the outcome would have been different. That “gap” between what happened (with the negligent lawyer) and what would/should have happened (without the negligent lawyer) is what gives rise to a client’s financial harm. The monetary measure of that harm is called damages.
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