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What are the Common Defenses to Legal Malpractice Cases?

What are the Common Defenses to Legal Malpractice Cases?

Legal malpractice cases are highly fact intensive. No two cases are alike. There are, however, some common defenses to these sorts of cases.

Attorney Client Relationship

This often comes up in the situation where your former lawyer represented multiple individuals and/or businesses. The lawyer might defend your case by arguing that he or she did not represent you and instead represented only your business. Lawyers who represent a business do not necessarily represent all the officers, employees, or shareholders of that business; in fact, they usually do not. But we can sometimes argue that even though someone else was technically the client, you were a person who was supposed to benefit from the representation, what is called a “third party beneficiary” of the representation, and you are entitled to sue the lawyer if he or she makes a mistake that costs you money or property.

Scope of Representation

The defendant may argue that you did not hire him to perform the specific service that you allege to be negligent. This is why written retainer agreements are so important. Every time you hire a lawyer, you should make sure that whatever the lawyer is supposed to do for you is spelled out clearly in a document that is signed by the lawyer or someone on behalf of the law firm.

Factual Disputes about What Happened

Different people perceive things differently and remember them differently as well. It is just natural to see things in a way that is better for you, and especially to remember them in a way that is better for you afterwards. You may find that your lawyer claims you discussed certain choices and approved the lawyer’s actions, when you don’t believe you ever did. Here again, having things in writing is critical. Any time you are asked to approve something a lawyer did or to make some choice in your case, you should ask the lawyer to write down the considerations and you should send an email or letter describing your decision and explaining your thoughts. Keep all those documents. A contemporaneous record is far more believable than what people think they remember after the fact.

Another good source of written evidence about what the lawyer was doing for you and advising you about is the lawyer’s file. You are entitled by the Massachusetts Rules of Professional Conduct to obtain a copy of your file. Sometimes you may have to pay the costs of copying documents in the file, and you are not entitled to get materials the lawyer had to pay for, unless you reimburse the lawyer for the cost. If you were paying the lawyer on an hourly basis, you are not entitled to get materials the lawyer created such as legal research memoranda or reports of interviews or investigations, unless you pay for the time it took to generate those documents.


Causation is one of the most common defenses of legal malpractice claims, and it can be very difficult to prove causation. This defense arises in a number of ways. For example, if your former lawyer represented you in a slip and fall case and failed to file suit within the statute of limitations, you will not only have to prove that the lawyer was negligent, but you will have to prove that if the lawyer did his or her job properly you would have won the slip and fall case. This is often called proving the “case within a case.” If you can’t prove the underlying case, then you haven’t proven that you were harmed by the lawyer’s mistakes.


This often comes up in cases involving business losses. It may be difficult to prove that you suffered damages as a result of the lawyer’s negligence as opposed to the actions of a third party. Also, how profitable a business would have been if things were different is by its nature somewhat speculative. The law does not allow for speculative damages, so you will need enough hard evidence, a track record of performance, to prove that it is more likely than not that your business would have generated a specific amount of profit if the lawyer had done the job right.

Statute of Limitations

If you fail to bring a lawsuit within the applicable statute of limitations, you will be barred from bringing a claim. The Statute of Limitations in legal malpractice claims, however, can be difficult to determine. Generally speaking, it is three years from the negligence. Additional time, under the “discovery rule” may be applicable. This means that the statute may be tolled during the period of time before you knew or should have known that you had been injured as a result of your lawyer’s negligence. Also, the “continuing representation” doctrine may give you additional time if your former lawyer continued to represent you after the date of the alleged malpractice.

Each of these defenses is highly technical, and only an experienced legal malpractice lawyer will know how to argue against them. When you sue a lawyer in a legal malpractice case, the lawyer will be defended by a specialist in legal malpractice defense. You need an experienced legal malpractice lawyer on your side too. The legal malpractice lawyers at KJC Law Firm have more than 90 years of experience litigating major cases. We understand legal malpractice claims. We have the resources to investigate your claim, hire the necessary experts, and get you the compensation that you deserve. KJC Law Firm represents victims of legal malpractice from communities all across Massachusetts, including the Greater Boston area, Cambridge, MetroWest, Cape Cod, Fall River, Lowell, Worcester and Springfield.

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