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Did My Attorney Commit Malpractice?

Posted by attorney Vijay Sharma

What can a person do when they think their attorney has committed malpractice?

First, a lawyer is required to exercise an ordinary and reasonable level of skill, knowledge, and prudence common to members of the legal profession in the community. If an attorney fails to exercise a reasonable degree of care and skill they can have committed malpractice. An attorney is not liable for a mere error of judgment.

An attorney is not liable for simple errors in judgment. Attorneys do not guarantee that their judgment is infallible, and they are not necessarily negligent because they do not discover all decisions on a subject. For instance, a error in a court order is a error in judgment and is not necessarily malpractice.

So you think that an attorney has failed in more than a error in judgment, how do you prove it? The question of whether an attorney has met the standard of care must be established through expert testimony. If a criminal defense attorney is accused of malpractice, they don’t want a bankruptcy attorney called in as an expert. The expert witness is an attorney of a like discipline or specialty.

The expert is required to establish not only the standard of care, but also the breach of that standard of care and that the breach was the proximate cause of the injuries sustained. So the expert has to say what a proper course of action should have been, how it didn’t happen and what damage is caused.

You do not need expert testimony if ‘the negligence is so grossly apparent or the treatment is of such a common occurrence that a layman would have no difficulty in appraising it,’ " expert testimony is required. An example of when expert testimony is not required is when the attorney lets the statute of limitations expire.

If an attorney acts with a proper degree of attention, with reasonable care, and to the best of their skill and knowledge, the attorney has met the standard of care and will not be held to have committed malpractice. The Illinois Supreme Court has said that some allowance must always be made for the imperfection of human judgment.

So, if you think your attorney screwed up, the question should be: how bad?

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