While most lawyers you’ll meet will act as though they are the best, the smartest and the most effective at what they do, this is not always the case. There are attorneys who are negligent in any number of ways.
As noted in a previous blog post, there are a number of reasons an attorney could be deemed negligent or guilty of malpractice. One of the most common, yet most challenging to understand, is incompetence.
Initial signs of incompetence
One problem with the idea of incompetence is that it is easy to understand but not always easy to prove.
Cases involving incompetence usually start with a vague sense from the client: “My lawyer doesn’t know what she’s doing,” or “I think my lawyer doesn’t know how to handle this case.” Sometimes it is as simple as your attorney losing your case, which seemed like an easy win. Perhaps your attorney seemed distracted in court and didn’t seem prepared.
These initial signs are not determinative
Although these initial indications of possible incompetence are often the beginning of a malpractice claim, they do not establish incompetence definitively. Losing a case is not grounds for a malpractice claim of incompetence. In almost every legal dispute, someone wins and someone loses. If losing a case were grounds for a malpractice claim, every case would end with one of the clients suing his or her attorney.
A successful incompetence claim requires much more specific evidence of actual incompetence.
What is incompetence?
According to the California Legal Bar Association’s Rule 3-110 (Failing to Act Competently), the requirement of performing competently falls into three categories:
- Diligence: While being a little disheveled in the courtroom does not constitute negligence or incompetence, failure to be prepared does. Being diligent refers to meeting deadlines, being adequately prepared and handling all matters associated with a case in a professional manner.
- Learning and skill: This category is a little more complicated. The law is complicated and there are many distinct practice areas that require specialized knowledge and experience. A lawyer who has been handling nothing but consumer bankruptcy might not be competent to handle a complex corporate merger, for example. This does not mean that an attorney cannot touch a case that she is not competent to handle. It simply means that she must either obtain the requisite knowledge or associate with another attorney who does have the knowledge and experience to handle the case adequately.
- Ability reasonably necessary for the performance of legal service: This category refers to the attorney possessing the mental, emotional and physical ability needed to handle the case. If a lawyer cannot understand the nuances of the case or, perhaps, he is having serious health problems that prevent him from giving the case the attention it deserves, that could be considered incompetence.
Each of these categories has further nuance and case law precedent to add further clarification. If you suspect your lawyer did not handle your case properly, it would be wise to talk with a legal malpractice attorney who can look at the facts of your case and determine whether you have a viable claim.
You could obtain compensation for the losses that resulted from your lawyer’s negligence, or you could possibly get a new trial with a better attorney.