In a litigation malpractice case, the plaintiff sues his former attorney for poor or inadequate representation. The burden of proof is on the plaintiff and, specifically, the plaintiff has to show that he would have had a substantially better outcome in the case handled by the defendant lawyer if the defendant lawyer had not performed so inadequately.
So, there is an element of causation that must be shown. Attorneys make mistakes - they are human, after all - but in a litigation malpractice case the mistake has to be the reason for the less than adequate outcome. In other words, no matter how blatant the attorney's mistake is, if it was not the direct cause for plaintiff not getting a better result, there is no causation.
If the plaintiff can show that the reason he lost his case was not because of any other factor, but the direct result of your attorney's error, he has causation. If there is no causation, there is no litigation malpractice case.
Once you prove causation, the next step is to prove that the defendant lawyer's actions were negligent enough to warrant the plaintiff some sort of compensation. This is to make up for the compensation the plaintiff did not receive in the underlying case due to the lawyer's inadequate or poor representation.
Examples of litigation malpractice include missed statute of limitations, conflict of interest, breach of confidentiality, billing fraud and failure to vigorously represent.
A missed statute of limitations is where the lawyer fails to file the appropriate documents by the designated deadline.
A conflict of interest is where the lawyer violates the ethical rule that his interests not be adverse to that of his client. An example would be where a lawyer is representing Ms. Jones in the case of Ms. Jones vs. A Corporation but A Corporation is also that lawyer's client.
Breach of confidentiality is where the lawyer relays information to an outside party that his client told to him under the attorney client privilege.
Billing fraud is where, for example, the lawyer charges the client for three hours of his time for preparation of a motion that actually took him one hour to prepare.
Failure to vigorously represent is where the lawyer fails to represent the best interests of his client.
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