It is important to understand the defense tactics your former lawyer might raise when you sue him. This list is not meant to be exhaustive. Each case is highly fact sensitive, and there is no substitute for detailed analysis of your case by a competent attorney. Here are a few of the typical arguments defense lawyers might use to try to fight your legal malpractice claim:
“You failed to bring suit against your attorney within the applicable statutory time period.” See Is there any time limit for when I can sue my lawyer? set forth below.
“You had no attorney-client relationship with the attorney.” This comes up in a variety of situations, where you may have received legal advice but the attorney did not open a case, or where you had hoped to benefit from the lawyer’s work for another person. It is important to remember, however, that there are instances where an attorney can be held liable even to non-clients, especially if the non-client can show he reasonably relied upon the lawyer’s work.
“You did not hire the attorney to do the thing you say he failed to do.” This is called the “scope of representation” defense. A typical example: you hire a lawyer to handle a residential real estate closing, for a property on which you hope to build an additional structure. After the closing, you find out there is a town by-law prohibiting your construction plans. If you sue that lawyer, he will assert the defense that his only job was to handle the closing plus the routine ordinary things that go with that, and that you did not hire him to investigate the legal requirements for further construction on the premises.
“You are guilty of contributory negligence.” This is a way of asserting that even if your lawyer was negligent and you suffered damages because of it, you did something careless that caused a portion of those damages, for which you, not your lawyer, should be held accountable.
“You cannot prove that there is a causal connection between the legal malpractice and the damages you suffered.” In the event of business losses, such as lost profits resulting from the failure of an attorney to properly document a business deal, it is sometimes difficult to determine whether the business terms themselves, as negotiated by the parties, or market forces in general caused the loss, rather than any failure of the part of the attorney.
“You would have suffered the same damages even if the attorney had not been negligent.” This defense is asserted when it appears that, even if a latter-day Clarence Darrow had been your lawyer, you would have lost the underlying case anyway.
“You may have suffered losses, but they were caused by a third party or by forces over which the attorney had no control.”
These defenses and others could be asserted depending on the specific facts of your case. Thorough preparation and deep understanding of the law is required to meet the challenge presented by these defenses.