Attorneys who commit malpractice rely upon three main defenses. First, the trangressing attorney usually will claim that his actions or omissions did not breach the standard of care among reasonable competent practitioners in the same field. Whether or not the attorney committed malpractice is a question of fact for the jury to determine. Experts for both sides will testify as to whether or not the attorney’s conduct constituted legal malpractice; and the jury will determine whether or not the attorney breached the standard of care.
Secondly, the transgressing attorney will claim that the client was somehow contributorily negligent. In one of my legal malpractice trials, a bankruptcy attorney claimed that he filed the client’s Chapter 13 bankruptcy petition after the client’s home had been foreclosed, because he claimed that the client had not informed him of the foreclosure date. The jury believed the client’s testimony that she had left numerous messages with the attorney’s secretary regarding the date of the foreclosure.
Thirdly, transgressing attorneys will claim that their malpractice did not cause the clients to suffer harm. For example, a personal injury attorney may claim that the client would have lost his or her underlying personal injury case at trial, even if the attorney had not committed legal malpractice. Once again, it is a question of fact for the jury to determine whether or not the attorney’s legal malpractice proximately caused the client’s damages.