We get 3-5 calls or emails a week from people who want to sue their lawyer for malpractice. To do so you have to show that your lawyer was negligent in a way that caused irreparable harm. That means a harm that can’t be fixed. The most common example is when a lawyer fails to file a lawsuit before the statute of limitations has run.
A lot of people who call us do so after they’ve lost a case or are unhappy with their result. I ask what the attorney did wrong that was legal malpractice and I often hear a similar reply. “My lawyer didn’t do anything.”
In most cases that simply isn’t true. If they filed a lawsuit, they did something. If they showed up to court, they did something. Same if they took a deposition, talked to opposing counsel, talked to you, etc. These are things. They might not have done it well, but that’s not legal malpractice.
This isn’t to say we’ve never sued a lawyer in Illinois for not doing anything. A recent settlement of almost $400,000 was against a divorce attorney who failed to show up to court so a default judgment was entered against his client. The client lost out on equity in the house and part of their spouse’s pension. It was negligent not to show up and the client had real, irreparable financial harm.
In other cases, people say the lawyer didn’t do anything when they really mean that the lawyer didn’t do the case the way I wanted to. Often that means not presenting certain evidence. In those cases, it might be malpractice. It also might be that the attorney made a judgment call that just didn’t work out. That isn’t negligence as no case is guaranteed to win.
In another case we were involved with, a criminal attorney was given exculpatory evidence, but didn’t notice it for around 18 months while his client say in jail. That wasn’t a judgment call situation, but a real example of the attorney doing nothing in a way that harmed the client. Once the evidence was presented the client got out of jail, but of course missed out on over a year of freedom.
There’s no guaranteed way to avoid legal malpractice. We’ve seen cases against some firms that do great work. Mistakes happen whether it’s the best lawyers or doctors. But it’s also true that a handful of lawyers have more allegations against them than others. So if you want to avoid hiring an attorney who will screw up, I usually recommend the following:
- Don’t hire someone to old or too young.
- Beware attorneys who try to handle every case that comes through the door. You are better off with an attorney who has a narrow practice focus.
- Make sure they have a documented track record of success.
- Check the ARDC website to make sure they carry legal malpractice insurance.
- Don’t ignore red flags. If they aren’t returning phone calls or doing what they say they were going to do, either confront them or switch law firms before it’s too late.
- Be in touch with them at least once a month. Mistakes often happen on cases lawyers forget about.
- If you are going to sue, ask the attorney what the statute of limitations is and make sure you are communicating about when the suit will get filed.
Hopefully you don’t ever need to sue a lawyer in Illinois, but if you want to talk about it, call us any time at 312-346-5320.
