Every time there is a "bad" or "unfortunate" case outcome it is not necessarily legal malpractice. If an attorney gave what turned out to be "bad" or "the wrong" advice, you cannot automatically accuse the prosecutor of legal malpractice. No professional can ensure or promise a positive outcome for his client. It is important to remember that what creates liability is the lawyer's failure to act in the manner the ordinary or reasonable lawyer would act in handling that matter for his client.



To successfully win a legal malpractice case, a plaintiff must prove that the lawyer's negligence was the legal cause of some actual damage to the plaintiff. Damages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable.

It is not sufficient to allege that the underlying case should have settled for more or resulted in a higher verdict at trial. It is not sufficient to allege that "if" the plaintiff had been given the right advice, he might have spent less money in a transaction, or might have received more in the transaction.

For legal malpractice in litigation cases, the need to prove actual damages requires the plaintiff to prove what he would have recovered in the "underlying" action, and that he was denied that recovery by the actions of the lawyer. The jury instruction which is read in California legal malpractice cases tells the jury that California law requires a plaintiff who establishes malpractice on the part of his or her attorney in prosecuting a lawsuit must also prove that careful management of it would have resulted in a favorable judgment and collection thereof.

Because of this, the "new" attorney must litigate the "case within the case": that is, he must not only prove that the first attorney was negligent, but also that there would have been a recovery in the lawsuit the attorney was hired to prosecute.

If there was difficult or no liability in the underlying case, there is little chance of a recovery in a legal malpractice case. If the defendant had no insurance, or had no assets from which a judgment could be satisfied, there is no actual damage that can be recovered in the legal malpractice case.