Attorney malpractice

Unfortunately, lawyers sometimes fail their clients and mistakes are made. They may take a case for which they lack the degree of learning, skill, and ability necessary to competently handle the suit.  When this happens, they may provide incompetent representation, such as fail to give good advice, miss important points of law, not properly prepare for, or present, the case, or fail to follow one or more of the many sets of procedural rules, such as the NC Rules of Civil Trial Court Procedure, NC Business Trial Court Rules, NC Trial Court Local County Rules, NC Rules of Appellate Procedure,  Federal Rules of Civil Trial Court Procedure, local rules applicable to the various federal trial courts (such as the Local Court Rules for the Western District of NC), Federal Rules of Appellate Procedure, or local rules applicable to the various federal courts if appeal (such as Local Court Rules for the Fourth Circuit Court of Appeals).

Second, even where a lawyer possesses the necessary learning, skill, and ability, they may not act with reasonable and ordinary care and diligence in applying their skill and knowledge to the case. For example, they may fail to file a lawsuit within the time required under what is typically referred to as the statute of limitations, fail to file a response to a lawsuit in time, possibly causing the client to lose by Default Judgment, or miss other important deadlines, not appear in court as required, fail to follow court orders, not properly prepare for trial, fail to present crucial evidence at trial or object to inadmissible and harmful evidence as provided for under the applicable rules of evidence (either the NC Evidence Code or Federal Rules of Evidence) or violate the Rules of Professional Conduct.

To win an attorney malpractice case, in addition to proving the attorney breached his duty of care, the plaintiff must prove the attorney’s negligence caused him to lose the case; in other words, that the negligence made a difference in the outcome.  To do so, he must show he had a valid claim or defense in the underlying case and it would have resulted in a judgment in his favor.  Finally, if he was also the plaintiff in the underlying case, he must prove the judgment he should have obtained would have been collectible or enforceable.  In short, the plaintiff must prove the likelihood of success of the underlying case as part of the attorney negligence case.

In addition to, or in lieu of, filing an attorney malpractice action seeking money damages, a client may file a complaint with the NC State Bar Grievance Committee requesting that the lawyer be disciplined by the Bar, which would not require the former client to prove the same things that would need to be proved to win an attorney negligence case.