When you hire a lawyer, you expect competent representation, not conduct that costs you money or your legal rights. Your attorney takes on fiduciary responsibilities to you, and you rely on your lawyer to counsel and act on your behalf. When a lawyer’s services fail to meet the duty of care, it can constitute legal malpractice.
Proving that claim is harder than many clients expect. A disappointing result is not enough on its own. If you suffered losses due to a lawyer’s negligence, speak with a Chicago legal malpractice attorney about your options. This guide explains what you must prove and how each part is usually shown.
What Do You Have to Prove in a Legal Malpractice Claim?
To prove legal malpractice in Illinois, you must establish four elements: an attorney-client relationship that created a duty, breach of that duty, causation, and actual damages. These elements follow the framework of duty, breach, causation, and damages that governs professional negligence. Each is fact-sensitive, and failure to establish any one defeats the entire claim.
- Duty: Illinois courts have long held that attorneys owe their clients a duty to exercise reasonable care and skill. The Illinois Supreme Court recognized this in Stevens v. Walker & Dexter, 55 Ill. 151 (1870). Without an attorney-client relationship, there is generally no basis for a malpractice claim.
- Breach: the attorney’s conduct fell below the accepted professional standard.
- Causation: but for the attorney’s negligence, the underlying claim would have been successful.
- Damages: a concrete monetary loss caused by the negligence.
Any of the four elements can be in doubt. Someone may give you legal advice outside the scope of a representation agreement, and it may be unclear whether they were acting as your attorney. Keep copies of engagement letters, retainer agreements, and written communications. These documents often become the clearest proof that an attorney-client relationship existed and defined the scope of the lawyer’s duty. For a broader overview, see our post on what legal malpractice is.
How Courts Judge the Standard of Care and Breach
The most contested element in many legal malpractice cases is whether the attorney breached their obligation to you. The plaintiff bears the burden of proving breach by a preponderance of the evidence, as reflected in Brown v. Gitlin. The question is whether the lawyer’s work fell below what a reasonably careful lawyer would have done in the same situation.
Rules of professional responsibility help define that standard. The first rule in the American Bar Association’s Model Rules of Professional Conduct states that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Rule 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Note that your lawyer did not have to perform like someone at the top of their class at Harvard. Legal malpractice looks at what an average lawyer would have done, and your lawyer needed to perform reasonably under the circumstances, not perfectly. Missing a deadline, an inadequate investigation of the facts, or an undisclosed conflict of interest can each breach that duty. Our post on the most common causes of legal malpractice claims covers more examples.
The Case Within the Case
Legal malpractice cases are also tricky because they often feature a trial within a trial for a case that was actually litigated. To a certain extent, you will need to review and retry your original case.
Illinois applies causation through a demanding “but-for” test. A plaintiff must prove that but for the attorney’s negligence, the underlying claim would have been successful, a principle traced through Priest v. Dodsworth, 235 Ill. 613 (1908), and Chicago Red Top Cab Ass’n v. Gaines.
The jury will need to check the facts of your prior case or engagement to see what should have happened and what did happen because of your lawyer’s conduct. Thus, your attorney will need to present much of the same evidence you presented or should have presented in your original case. The court will consider your initial matter on its merits in your malpractice case.
Your previous attorney may need to disprove your original case. They will aim to show that they could have done nothing to reach a different result, and they must justify and defend their actions (or lack thereof). Some legal malpractice cases are easier to prove than others. If the lawyer committed fraud or violated ethical rules, you may not have as heavy a lift to prove that they did something wrong.
Proving Damages
Damages are not presumed in legal malpractice suits. Illinois plaintiffs must plead and prove monetary loss as a result of the attorney’s negligence. A poor outcome alone, without measurable financial injury tied to the lawyer’s conduct, will not support a claim.
The court can use one of two ways to measure your case and the damages when your attorney has either failed to pursue your case diligently or reached a deficient settlement:
- The court may use a “case within a case approach” to determine what your case should have been worth absent legal malpractice
- A court may look at what the settlement value of your case should have been
The approach used by the court depends on the state. In Illinois, the court uses a settlement value approach.
Then, you must prove that you would have recovered damages. For example, you cannot collect damages if you obtained a $1 million verdict against a driver without assets. You must show that you had a realistic chance of receiving the compensation instead of getting a judgment that the other party will never pay. Our post on how legal malpractice settlement amounts are calculated in Illinois explains how these figures are reached.
When the Original Matter Settled or Never Went to Court
Not every malpractice claim grows out of a lost trial. Many involve a matter that settled, or legal work that never reached a courtroom, such as advice on a contract, a business deal, or an estate plan. The four elements stay the same, but the proof looks different.
When the underlying case settled, the question is usually whether the settlement was worth less than it should have been because of the lawyer’s error, for example because the lawyer did not investigate the claim or misjudged its value. One of the main areas where lawyers commit malpractice is in their conduct of settlement negotiations.
When the work was advice or a transaction, there may be no earlier case to retry. Instead, the claim compares what happened with what would likely have happened if the lawyer had given competent advice: a better contract term, a deal on different terms, or a loss that would have been avoided. The documents from the transaction, the lawyer’s written advice, and the timeline of decisions carry much of the weight.
In both situations, you still have to connect the lawyer’s error to a measurable financial loss.
Evidence and Expert Testimony
Because the plaintiff carries the burden of proof, strong claims depend on documentary evidence, careful timelines, and supporting professional testimony. Practical preparation often includes gathering:
- The complete file from the underlying representation
- A clear record of the alleged error, such as a missed deadline or conflict
- Evidence connecting the attorney’s conduct to a specific financial loss
- Information showing when the alleged act occurred and when it was discovered
Request your full client file promptly. Reconstructing the “case within a case” is far easier when you have the original documents rather than relying on memory.
You will usually need an expert witness in a legal malpractice case. The expert witness will articulate the standard of care your lawyer should have followed and compare what your lawyer did to what a lawyer of ordinary training would have done under the circumstances. Illinois courts recognize a narrow exception under House v. Maddox: such testimony is not required when negligence is “apparent and undisputed.” Meanwhile, your former attorney will also have their own lawyer and expert witnesses, who will argue either that your former lawyer acted reasonably or that their conduct made no difference to the result.
Timing matters too. Illinois sets strict deadlines for these claims, explained in our post on the Illinois legal malpractice statute of limitations.
Work With a Legal Malpractice Lawyer
You can win a legal malpractice case, especially when you get the help of an experienced lawyer. Often, suing your lawyer is the only way to recover the loss they caused you.
A lawyer who handles malpractice claims can review the file from your original matter, identify where the representation fell short, and decide which experts are needed to prove each element. They can also tell you early whether the facts support all four elements, before you spend time and money on a claim that cannot succeed.
Before your case goes to court, you will likely deal with your former lawyer’s insurance company. They often call the shots because they will pay out any settlement or verdict. They may negotiate with you if they investigate and learn that the attorney did something wrong.
If you believe an attorney’s negligence cost you money, act promptly. Bring your retainer agreement, the file from the original matter, and your correspondence with the lawyer to a consultation, so the lawyer can see the full picture.
Talk With King & Jones
If you are facing a business dispute or a problem with a lawyer’s work, our Chicago trial lawyers can review your situation and explain your options.
When you hire an attorney, they take on fiduciary responsibilities to you since you are in a relationship of trust. You do not have legal knowledge. Thus, you rely on your lawyer to counsel and act on your behalf.
Like any fiduciary, your attorney owes you the following obligations:
- The duty to place your interests ahead of their own and to avoid things like undisclosed and unapproved conflicts of interests
- The duty to use reasonable care when representing you and providing you with legal services
Every attorney should be well aware of the duties they owe their clients and make every effort to uphold those duties. Unfortunately, as in any profession, all lawyers are not created equal.
Some have self-serving interests or refuse to admit when they cannot adequately represent a client in a particular case. When a lawyer’s services fail to meet the duty of care, it can constitute legal malpractice.
In such situations, clients can experience significant financial harm. Some might lose cases and legal relief they deserved for no other reason but the attorney’s negligence. Others might miss statutes of limitations or experience extreme financial and temporal setbacks if they have to find new representation.
If you suffered losses due to a lawyer’s negligence, speak with a legal malpractice attorney about your options immediately.
Your Attorney Owes You Duties and Obligations When They Represent You
Rules of Professional Responsibility require that the attorney follow numerous obligations when representing you. The first rule in the American Bar Association’s Model Rules of Professional Conduct states that:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Then, the rules contain numerous other requirements that a lawyer must follow or prohibitions on what they cannot do when representing a client. For example, Rule 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Attorneys Can Break the Rules and Cause You Damages
For whatever reason, your attorney may not follow the rules. They may cause you a loss through dishonest or careless representation. You may have suffered adverse consequences that you should have avoided had your lawyer correctly done their job.
Whether your lawyer consciously broke the rules or did not have the skill to represent you properly makes no difference. You can hold an attorney liable in a legal malpractice case. If you can prove your case, your lawyer must pay you for the harm they caused you.
Attorneys May Carry Malpractice Insurance to Protect Themselves
Your former attorney likely has purchased legal malpractice insurance to protect them from situations like yours. Attorneys may purchase policies with coverage limits as high as $10 million.
The average legal malpractice settlement or verdict is nearing $300,000. If your attorney costs you money, they can be liable to pay for it. The last thing that they want is for you to go after their personal assets.
Insurance companies have reported that the number of malpractice claims against lawyers has soared recently. One of the main areas where lawyers commit malpractice is in their conduct of settlement negotiations. Attorneys can end up costing their clients serious money through a lack of diligence and skill when negotiating with insurance companies.
Not All Attorneys Are up to the Task When They Take a Case
The surge is not just because more lawyers are performing more tasks. Some attorneys accept a case and then ask questions later because they want the business. They may not have the skill to handle a particular case, or they may not have the capacity because of their caseload. You may only learn that after your lawyer can cost you money.
Careless attorneys may not pay the amount of attention that they should to your case. Sometimes, the lawyer’s financial interest may get in the way of proper representation.
Elements You Need to Prove to Win Your Malpractice Case
To win a legal malpractice case, you will need to prove:
- You can the lawyer had an attorney-client relationship
- The lawyer did not uphold their duty to provide competent and skillful representation
- You suffered a financial loss
- Your financial loss was caused by the actions of the attorney
Like any case where you seek compensation, you will have an obligation to prove each element. You cannot obtain money for your losses if you cannot prove even one of them.
Any of the four elements can be in doubt in a legal malpractice case. For example, if an attorney signed a representation agreement, they will work as your attorney. However, someone may provide you with legal advice outside the scope of an agreement. Someone may have been your attorney, but it is unclear if they are currently working in that role.
The most contested element in any legal malpractice case is whether the attorney breached their obligation to you. Many things can breach the attorney’s obligation to you, from errors in the case to dishonest actions they took during their representation.
Examples of Legal Malpractice that Could Entitle You to Compensation
Here are examples of legal malpractice:
- Missing a deadline in your case that cost you the chance to make a filing or meant that your case was dismissed entirely
- Inadequate investigation of the facts of your case or doing a slipshod job when you had an opportunity to learn information in the discovery
- Having an undisclosed conflict of interest in your case, which caused your legal representation to suffer
- Your lawyer made a mistake on a basic fact of law, or they misapplied the law to the facts of your case
- The lawyer accepted your case, even though they did not have the experience necessary to represent you properly
- Your attorney was woefully unprepared for trial or a court proceeding
- Your attorney committed fraud in their representation of you
Then, you must prove that you suffered actual harm. If you lost your case or the attorney stole money, you can prove your legal malpractice claim much easier.
Causation Is Often the Most Complex Element of Your Case
The last element of the test is causation. You must prove that you should have obtained a better result in the case had the attorney not breached their obligation.
The attorney can argue that you would have still received the same result no matter what they did. For example, if you lost your case, the attorney can argue that the facts and law were not on your side and that nothing the attorney might have done would have led to a different result.
Some legal malpractice cases are easier to prove than others. For example, if the lawyers committed fraud or violated ethical rules, you may not have as heavy of a lift to prove that they did something wrong. The more difficult cases are when you need to subjectively prove that your attorney made a legal mistake in their representation of you through their lack of diligence.
Your Lawyer Can Help You Prove Your Case
You may need a lawyer to prove your professional malpractice case. You will need a professional to testify what the lawyer should have done in your case. The expert witness will articulate the standard of care your lawyer should have followed in a particular case. For example, if your case involves extensive discovery, they will testify about what they think an average lawyer should have done to investigate your case.
They will review the actions the lawyer took (or did not take) on your behalf. They will compare what your lawyer did to what a lawyer of ordinary training would have done under the circumstances.
You Can Prove Your Case Using Expert Witnesses
You will usually need an expert witness in a legal malpractice case. You may not require them only when the lawyer’s malpractice is so evident that even a layperson will understand what your attorney did wrong. The case will likely not even reach court in that event because the insurance company will want to settle it.
Meanwhile, your attorney will also have their lawyer and expert witnesses, who will either argue that your former lawyer acted reasonably or that they made no difference in the ultimate result of your case. Some attorneys have dedicated practices that defend attorneys accused of legal malpractice.
The “Trial Within a Trial” in a Legal Malpractice
Legal malpractice cases are also tricky because they often feature a trial within a trial for a case that was actually litigated. To a certain extent, you will need to review and retry your original case.
The jury will need to check the facts of your prior case or engagement to see what should have happened and what did happen because of your lawyer’s conduct. Thus, your attorney will need to present much of the same evidence you presented or should have presented in your original case. The court will consider your initial matter on its merit in your malpractice case.
Your Prior Attorney Must Show That You Would Not Have Won
Your previous attorney may need to disprove your original case. They will aim to show that they could have done nothing to reach a different result in your case. Then, they must justify and defend their actions (or lack thereof) and explain why they did not cause a worse outcome than they achieved.
Note that your lawyer did not have to perform like someone at the top of their class at Harvard. Legal malpractice looks at what an average lawyer will have done. Similarly, your lawyer did not have to be superhuman during your case. They need to perform reasonably under the circumstances. Thus, you are already beginning a legal malpractice case from a difficult position.
However, you can win a legal malpractice case, especially when you get the help of an experienced lawyer. Often, suing your lawyer is the only way to recover the loss they caused you.
How Courts Will Decide Your Case
The court can use one of two ways to measure your case and the damages when your attorney has either failed to pursue your case diligently or reached a deficient settlement:
- The court may use a “case within a case approach” to determine what your case should have been worth absent legal malpractice
- A court may look at what the settlement value of your case should have been
The approach used by the court depends on the state. In Illinois, the court uses a settlement value approach.
You Must Also Prove that Collecting Money Was a Likely Outcome
Then, you must prove that you would have recovered damages. For example, You cannot collect damages if you obtained a $1 million verdict against a driver without assets. You must show that you had a realistic chance of receiving the compensation instead of getting a judgment that the other party will never pay.
Insurance Companies Are Involved in Your Malpractice Case
Before your case goes to court, you will likely deal with your former lawyer’s insurance company. They often call the shots because they will pay out any settlement or verdicts. They may negotiate with you if they investigate and learn that the attorney did something wrong.
Settlement negotiations are usually similar to what you expect in a personal injury case. The insurance company wants to pay you as little as possible for your claim.
Contact an attorney if you believe you received poor representation in your prior case, regardless of the nature of the legal action. If your attorney committed legal malpractice, you might deserve significant financial compensation, although you will need the right legal representation from a malpractice attorney.
