Can you sue your lawyer for failing to investigate your case?

A lawyer cannot give sound advice or try a case well without knowing the facts. ABA Model Rule 1.1 defines competent representation as the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Investigation is part of that thoroughness and preparation.

Failures to investigate show up in every practice area:

• Divorce: not tracing assets a spouse is hiding, not valuing a business or pension, or not using discovery before settling. See divorce lawyer malpractice.
• Personal injury: not identifying every liable party or insurance policy, or not preserving evidence such as photos, vehicle data, or surveillance video before it is lost.
• Real estate and business deals: not checking title, liens, zoning, or the other party's representations.
• Criminal defense: not interviewing witnesses, reviewing forensic evidence, or looking into mitigation.
• Mass or group cases: not assessing each client's individual injuries before settling.

That last pattern appeared in Burrow v. Arce (Texas Supreme Court, 1999), where clients in a chemical plant explosion case alleged, among other things, that their lawyers failed to fully investigate and assess individual claims before an aggregate settlement.

No lawyer investigates everything, and clients usually cannot afford unlimited digging. Lawyers make judgment calls about which leads are worth the time and cost. A reasonable, informed decision to stop investigating is generally protected.

The line is between strategy and inattention. The U.S. Supreme Court drew it in a criminal case, Wiggins v. Smith (2003). Defense counsel in a capital case stopped investigating their client's background after reviewing a presentence report and social services records, even though those records pointed to a troubled history. The Court found the decision unreasonable and noted that standard practice in Maryland capital cases at the time included preparing a social history report. In Wiggins v. Smith, the Supreme Court held that counsel's failure to investigate stemmed from inattention, not strategic judgment, and amounted to ineffective assistance. Wiggins is a constitutional ineffective assistance case, not a civil malpractice suit, but it explains the same distinction civil courts use.

It is usually not malpractice when:

• The lawyer made a considered decision not to pursue a lead that was unlikely to help.
• You limited the scope or budget of the work, and the lawyer stayed within it.
• The missing information could not reasonably have been found.
• The information would not have changed the result.

For more on the line between judgment and negligence, see what is not legal malpractice.

A failure to investigate claim requires the usual elements: a lawyer-client relationship, a breach of the standard of care, causation, and damages. Each element has a specific shape here.

1. What a reasonable lawyer would have investigated, usually shown by an expert witness.
2. What that investigation would have found. You need the actual facts, not speculation.
3. How those facts would have changed the result, whether a better verdict, settlement, deal, or plea.

The leading civil example is Ziegelheim v. Apollo (New Jersey Supreme Court, 1992). A wife told her divorce lawyer she believed her husband had $500,000 hidden in cash and bonds and asked him to make a thorough inquiry into her husband's assets. She alleged the lawyer did not do so before negotiating a settlement. The trial court held that the family court's approval of the settlement as fair and equitable barred her claim. The New Jersey Supreme Court held in Ziegelheim that a family court's finding that a settlement was fair and equitable did not bar the client from suing her lawyer for failing to properly investigate her husband's assets.

The court explained why a judge's approval of a settlement is not the end of the question. A fair and equitable settlement does not necessarily mean the client's lawyer was competent, or that a competent lawyer would not have gotten more. When the wife tried to reopen the divorce, the family court had said there was ample opportunity for discovery and that it suspected everything was known, but that ruling did not address her own lawyer's competence. The court also noted that, if her expert was believed, the lawyer could have been found negligent for advising her to expect only 10 to 20 percent of the marital estate.

Proving the lost outcome is the case within a case, and it is the core of every failure to investigate claim.

Legal research counts too

Investigation is not only about facts. In Smith v. Lewis (California Supreme Court, 1975), a divorce lawyer did no reasonable research into whether retirement benefits were community property and left them out of the case. The court upheld a $100,000 verdict, holding that even on an unsettled point a lawyer must do reasonable research to make an informed decision. See bad legal advice.

Damages are the difference between the result you got and the result a proper investigation would have produced. In a hidden asset divorce case, the usual measure is the share of the undiscovered property you would likely have received, minus what you actually received.

Setting	Typical measure
Divorce, hidden assets	Your share of the missed property or support
Injury, missed defendant or policy	The added recovery that party would have paid
Real estate or business deal	Loss from the defect a proper check would have caught
Criminal case	Varies; many states require exoneration first

Many courts limit recovery to what would actually have been collectible, and states differ on whether lost punitive damages from the underlying case can be recovered; California does not allow them. Criminal cases have extra hurdles covered on our criminal defense malpractice page. See what a malpractice case is worth for more.

These claims are often discovered late, because you only learn what your lawyer missed when the facts surface years later. The discovery rule in many states starts the clock when you knew or should have known of the lawyer's error.

In California, Code of Civil Procedure section 340.6 requires suit within one year after discovering the facts of the wrongful act and no later than four years after it, subject to tolling; New York allows three years under CPLR 214(6). Some states also have a statute of repose that cuts off claims regardless of discovery. Check the statute of limitations table for your state. Write down the date you first learned what your lawyer missed, because that date may control your deadline.

1. Get your complete file to see what investigation was actually done. See how to get your case file.
2. Write down what you told the lawyer and when, including leads you asked them to pursue.
3. Collect the missing facts you have since learned, with proof of when you learned them.
4. Ask whether the original matter can be reopened, for example a divorce judgment obtained through concealment. A new lawyer should assess this.

Questions a malpractice lawyer will ask you

• What did you tell your lawyer, and when, about the facts that were missed?
• How did you learn the missing facts, and on what date?
• Could a reasonable lawyer have found them with ordinary discovery, records requests, or a basic search?
• What would the result have been if those facts had been known, and what proof supports that?
• Can the other side, or the missed party, actually pay?

The strongest failure to investigate cases combine written proof that you raised the issue with independent proof of what a basic investigation would have found.

If you believe a lawyer's failure to dig into the facts cost you, a free case review takes about two minutes and can connect you with an independent attorney who handles legal malpractice claims in your state.