Can You Sue Your Personal Injury Lawyer for Malpractice?

The classic case is a missed filing deadline. Every state has a limitations period for injury claims, and if the lawyer does not file suit or settle before it runs, the claim is usually gone for good. Other common patterns include letting the case be dismissed for failure to prosecute, missing a short notice deadline for a claim against a government agency, settling without the client's consent, and failing to identify all the insurance coverage that was available.

These claims are common. In the ABA's Profile of Legal Malpractice Claims covering 2020 to 2023, plaintiff personal injury work accounted for 12.73 percent of claims, third among all practice areas, though its share fell 3.58 percent from the prior study.

A published example: in Kituskie v. Corbman (Pa. 1998), a Pennsylvania dentist was hurt in a car crash while on vacation in California. His lawyer assumed Pennsylvania's two-year limitations period applied, and only learned after the fact that California's period for that injury was one year. The insurer refused to negotiate once the deadline passed, and the lawyer told the client to find another attorney to sue him.

Missing a filing deadline is almost always a breach of the standard of care. So is settling without your authority; see settled without consent. Those are the easy cases. Commencing an action or proceeding, where filing deadlines live, was the activity behind 18.90 percent of all claims in the ABA's 2020 to 2023 Profile.

Harder cases involve judgment calls. A lawyer who recommends accepting a settlement you later think was too low has not committed malpractice just because a bigger number was possible. Neither has a lawyer who lost at trial after a reasonable presentation. And a lawyer who decides after investigating that your case is not worth pursuing, tells you in writing, and leaves you time to find someone else has usually done nothing wrong.

Watch the deadline itself. If your lawyer withdrew or dropped the case, the question is whether you were told clearly and with enough time left to hire someone new. Our guide on what to do when your lawyer missed a deadline walks through the first steps.

You must prove the lawyer owed you a duty, breached it, and that the breach caused a real loss. The loss element is where personal injury malpractice gets technical. You generally have to prove the case within a case: that the at-fault party was liable for your injuries, what a jury or settlement would have paid, and that the money could have been collected.

That means presenting much of the original injury case, often years later, including medical evidence and sometimes accident reconstruction. An expert witness may be needed on the standard of care as well, although a blown deadline is sometimes obvious enough that courts do not require one.

Collectibility

A judgment you could never collect is worth nothing, so courts ask whether the underlying judgment would have been collectible. According to the Pennsylvania Supreme Court in Kituskie v. Corbman (1998), a majority of courts make the client prove the lost judgment would have been collectible, while Pennsylvania and a minority of states make the lawyer prove it would not have been. In Kituskie, the at-fault driver had a $25,000 policy, so collectibility beyond that limit was a live issue. See collectibility in the glossary.

The starting point is what you would have received if the case had been handled properly. That is usually the verdict or settlement value of the injury claim, limited by what could have been collected from insurance or the defendant's assets.

One recurring fight is whether to subtract the contingency fee the negligent lawyer would have taken. The Iowa Supreme Court in Hook v. Trevino (2013) described refusing to deduct the negligent lawyer's fee as the majority view, reasoning that the client would otherwise have to pay two lawyers to recover once. Washington courts take the same approach (Schmidt v. Coogan, 2007). Some other states have not squarely decided the question.

For broader numbers on what these cases pay, see how much a legal malpractice case is worth.

Two situations come up again and again in injury cases: the lawyer withdraws late, and the lawyer settles in a way the client did not approve.

A late withdrawal

Injury lawyers usually work on a contingency fee, so they can and do decline cases that look weak. That is allowed. The problem arises when a lawyer sits on a case for months and then drops it days before the limitations period expires, or never clearly tells the client it has been dropped. Under ABA Model Rule 1.16(d), which most states have adopted in some form, a lawyer ending a representation must take reasonable steps to protect the client, such as giving reasonable notice and allowing time to hire other counsel. A withdrawal that leaves you no realistic chance to file before the deadline can support a malpractice claim. Keep the withdrawal letter and note the date you received it.

A settlement you did not approve

The decision to settle belongs to the client. A lawyer who accepts an offer without your authority, or signs a release on your behalf without permission, may have committed malpractice regardless of whether the number was fair. See settled without consent for how those claims work.

Settlement money that never arrived

If the case settled and you never received your share, or the lawyer is holding it without explanation, the issue is likely your lawyer's handling of client funds rather than negligence. Settlement money belongs in a trust account until it is properly paid out. Ask for a written settlement statement showing the gross amount, the fee, costs, and any medical liens paid. If the money is gone, see stolen client funds and your state's client protection fund.

There are two clocks. The first is the limitations period on the injury case, which may already have run; that is often the whole problem. The second is the limitations period on the malpractice claim against the lawyer, which is separate and usually shorter than people expect.

In California, you generally have one year from discovering the mistake, and never more than four years from the act, to sue a lawyer for malpractice. Other states use two, three, or more years, and many apply a discovery rule or pause the clock while the lawyer keeps representing you on the same matter. Look up your state on the statute of limitations page.

Also check whether your injury case is truly dead. Some deadlines can be saved by tolling rules or a quick filing by new counsel. A new injury lawyer should look at that first, because recovering the original case is better than suing over it.

1. Get your complete file, including all correspondence with the insurer. See how to get your case file.
2. Have a new injury lawyer check whether any part of the original claim can still be filed.
3. Gather proof of policy limits, medical bills, and lost wages.
4. If settlement money was received and not paid to you, treat it as a stolen client funds problem and look at your state's client protection fund.
5. Write down when you learned about the missed deadline. That date may start your malpractice clock.

If you think your injury lawyer's mistake 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.