Written by attorney Thomas William Gooch III

The Basics of legal malpractice in Illinois


By: Thomas W. Gooch, III

This article is designed only to furnish a broad overview of the framework of a legal malpractice case and sum up the elements needed in order to effectively state a cause of action for legal malpractice.

Attorneys, like other professionals, i.e., physicians, architects, and accountants, are liable to their clients for negligent acts which result in damages suffered by their clients. Unlike an automobile accident, the duty owed a client is somewhat different and is frequently based on the contract, be it oral or written, which exists between the attorney and the client.

Suit, therefore, against an attorney may be brought as a breach of contract claim which alleges the contract between attorney and client and its breach by the failure to act or by the wrongful acts of the attorney, resulting in the breach of his contractual duty to his client.

Alternatively, a lawsuit may sound simply in negligence without reference to the elements of a contract claim. Whether suit is brought under a breach of contract theory or under a negligence theory, or, alternatively, under both theories, depends on the particular facts and circumstances of the claim and strategic determinations reached between the malpractice attorney and his client.

All malpractice claims, however, whether based on contract or simply negligence, have certain common elements. First, an attorney-client relationship must be proven to have existed between the malpractice plaintiff and the attorney defendant. This claim is frequently proven simply through a written agreement between the parties, or, in the case of an oral agreement, through the scope of conduct of the attorney. Certainly the payment of fees or a retainer is prima facia proof of such a relationship. The question frequently becomes the extent of that relationship and exactly what was intended for the attorney to do and what expectations the attorney had of the client.

The duty that arises is a duty to act as a reasonable attorney practicing the same type of law in the same broad geographical area as the defendant attorney.

Proof that the duty and therefore the contact were breached by the defendant attorney must also be shown, and that this breach occurred due to the failure to act or the wrongful acts of the defendant attorney. Both the definition of the duty and the breach of that duty and the resulting breach of contract are proven through the use of an expert witness.

The courts in Illinois determined that a layman is not competent to testify to the duty an attorney owes to his client or when a breach of that duty occurs. Therefore, this requires retaining an expert witness to testify before the jury as to the existence of the duty and its subsequent breach or breach of contract. That expert witness is an attorney retained by the malpractice attorney during the course of the litigation for the purpose of getting those opinions.

In almost every case, it is imperative to locate an expert witness willing to review the matter at hand and render the necessary opinions during discovery and trial. A cursory review should at least be obtained prior to the filing of suit and a non-binding commitment obtained from an expert prior to filing suit. Handling the matter in this fashion prevents other problems, which are the subject of subsequent articles.

Probably the most important of the elements of a legal malpractice case is determining proximate cause. That is, that the injuries suffered by the plaintiff and actual damages resulting therefrom and a direct result of the defendant attorney’s wrongful acts. This is to say that the basis of a malpractice claim is that the malpractice plaintiff would have been compensated for an injury claimed against a third party but for the negligence on the part of the malpractice plaintiff’s former attorney. Where the alleged legal malpractice involves litigation, a malpractice claim cannot exist unless an attorney’s negligence resulted in the loss of an underlying cause of action. This presumes that the underlying cause of action was dismissed due to the malpractice defendant’s negligence or went completely to trial and an adverse result occurred because of the malpractice defendant’s negligence.

There are numerous other scenarios where proximate cause and resultant damages are established in different types of cases, such as business transactions, the failure to properly advise clients on various courses of action not involving litigation, and, very commonly, the divorce settlement where a settlement is forced upon a malpractice plaintiff by his attorney due to that attorney’s failure to properly prepare for trial and/or take certain courses of action.

After establishing proximate cause, damages are a necessary element to a legal malpractice case. All actions for legal malpractice must be based on damages incurred. Damages in a legal malpractice action will not be presumed and the plaintiff in a malpractice action bears the burden of proof by preponderance of the evidence that actual damages resulted from the wrongful acts of the malpractice defendant.

Damages must consist of actual economic damages. Damages for pain and suffering or emotional distress are not recognizable damages under any circumstances in a legal malpractice case. Further, the damages cannot be speculative or nothing more than estimates. While some latitude is granted and damages may not need to be proven beyond a plaintiff’s burden, still, actual damages, as in every other lawsuit, are an essential component of the malpractice case.

Next – the statute of limitations and how it is applied to a legal malpractice matter.

Additional resources provided by the author

A local law library or search engine for case law will provide additional information specific to legal malpractice issues

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