Along with failure to apply the law, inadequate fact discovery and missed deadlines, poor choices in case planning and/or strategy (strategy error) can also lead to legal malpractice. For example, if the attorney is practicing an area of the law that is outside of his or her area of practice or comfort (a real estate attorney practicing criminal law or vice versa), the use of proper strategy for a given matter could be severely jeopardized. But even the most experienced lawyers practicing in their given area of practice can make critical planning and strategy errors. Lawyers oftentimes have a wide range of necessary strategy and planning required for a given matter.
Negligent choices in in setting forth the necessary and proper claims and/or defenses can be tied directly to a lawyer’s planning and strategy and can lead to malpractice. Additionally, negligent choices in discovery, settlement and/or trial strategy can also lead to legal malpractice claims against attorneys. For example, failing to assert certain claims or defenses could negatively affect the outcome of the client’s case. Additionally, negligent settlement or trial planning could also greatly affect a client’s rights.
It is important for both the lawyer and the client, from the outset of the case, to discuss the strategy and ultimate goals. Doing so will give the lawyer a “blueprint” or outline to refer to that can hopefully help limit any planning, strategy or timing errors.
As with all legal malpractice claims, each element of the claim must be present in order to prevail against a negligent attorney, including damages resulting from the lawyer’s negligence.