A lawyer may commit malpractice by pursuing a negligent strategy. This may include a strategy that is too aggressive, too weak, too costly, unethical, misguided or misdirected, or no strategy at all. Examples of errors in strategy include the following:
- Choosing the wrong court to initiate the claims;
- Choosing the wrong causes of action or theories of liability;
- Failing to plead the best defenses;
- Failing to consider tax consequences;
- Failing to consider insurance ramifications;
- Not pursuing pre-trial discovery, or not pursuing it adequately;
- Using discovery tactics to harass the opposing side rather than to gather meaningful evidence in a cost-effective manner;
- Allowing the opposing side to conduct discovery recklessly or aimlessly without objection;
- Allowing a member of the client’s family (perhaps somebody who’s paying the bill) to dictate the direction of the case;
- Failing to aggressively fight pre-trial motions or to file appropriate cross-motions;
- Failing to identify, interview and prepare witnesses for trial;
- Failing to consider, retain, prepare, and utilize appropriate expert witnesses;
- Adopting an unworkable theme for the trial;
- Assuming that a settlement offer will improve, and delaying work on the case in anticipation thereof.
An attorney may choose to pursue one or more strategies in handling a legal case. If a reasonably prudent attorney with the skill and competence level necessary to provide the same legal service would not have made the same decision made by the attorney, then there may have been a breach of duty. Where a duty is breached, and you have been damaged as a result, you may have a claim for legal malpractice.