Legal malpractice terms, in plain English.
31 terms you will run into when a lawyer's mistake costs you, defined without the jargon.
A
- Attorney judgment rule
- The principle that a lawyer is not liable for a reasonable strategic choice that turned out badly. Honest, informed judgment calls are protected; careless ones are not.
B
- Bar grievance
- A complaint to the agency that licenses and disciplines lawyers. It can lead to discipline such as suspension or disbarment, but it does not award you money for your losses.
C
- Case within a case
- The rule that a malpractice plaintiff usually must prove they would have won, or done better in, the original matter if the lawyer had not made the mistake. It means trying the underlying case again inside the malpractice suit. Also called the trial within a trial.
- Causation
- The link between the lawyer's mistake and your loss. If you would have lost anyway, the mistake did not cause your damages, and a negligence claim fails even when the error is obvious.
- Certificate of merit
- A filing some states require at the start of a professional negligence case, stating that a qualified expert has reviewed the claim and believes it has merit.
- Client file
- The papers and electronic records from your matter. In most states the file belongs to the client, and a lawyer must turn it over on request after the representation ends, subject to local rules on copies.
- Client protection fund
- A fund run by the bar or the courts that reimburses clients when a lawyer steals or dishonestly takes their money. It does not pay for negligence, and most funds cap payouts per claim.
- Client trust account
- A separate bank account (often called IOLTA) where lawyers must hold client money such as settlement funds and unearned retainers. Taking or mixing that money with the lawyer's own is among the most serious ethics violations.
- Collectibility
- Whether a judgment you lost could actually have been collected. Many states reduce or deny malpractice damages if the original defendant had no money or insurance to pay what you would have won.
- Conflict of interest
- A situation where a lawyer's duties to another client, a former client, or their own interests risk compromising their loyalty to you. Most conflicts require disclosure and written informed consent.
- Contingency fee
- A fee arrangement where the lawyer is paid a percentage of what you recover and nothing if you lose. Many lawyers who handle malpractice claims for clients work this way.
- Continuous representation
- A doctrine in some states that pauses the malpractice deadline while the same lawyer keeps representing you on the same matter, so you are not forced to sue your own lawyer mid-case.
D
- Damages
- The money a court can award for a loss. In legal malpractice this is usually what you would have recovered, or would not have had to pay, but for the lawyer's error, plus in some states fees paid for the bungled work.
- Default judgment
- A judgment entered against a party who failed to respond or appear. A lawyer who lets a client default by missing a filing deadline is a classic malpractice fact pattern.
- Discovery rule
- A rule in many states that the limitations clock does not start until you knew, or reasonably should have known, about the lawyer's mistake and the harm it caused.
E
- Engagement agreement
- The written contract that defines what a lawyer agreed to do and how they are paid. It sets the scope of the representation, which matters when a lawyer says a missed issue was never their job.
- Exoneration rule
- The rule in many states that a former criminal defendant cannot sue their defense lawyer for malpractice unless the conviction was overturned or they prove they were actually innocent.
- Expert witness
- In malpractice cases, usually an experienced lawyer who testifies about what the standard of care required and how the defendant fell short. Most states require one unless the error is obvious to a layperson.
F
- Fee arbitration
- A low-cost program, usually run by a state or local bar, that resolves disputes over what a lawyer charged. It decides fees, not malpractice, and in some states is mandatory for the lawyer if the client requests it.
- Fee forfeiture
- A remedy in some states that requires a lawyer who seriously breached their fiduciary duty to give back fees, sometimes even without proof the breach changed the case outcome.
- Fiduciary duty
- The duty of loyalty, honesty, and confidentiality a lawyer owes a client. A breach, such as secretly favoring another client or using client money, can support a claim even where ordinary negligence is hard to prove.
I
- Ineffective assistance of counsel
- A constitutional claim in a criminal case that defense counsel's performance was deficient and prejudiced the result. Winning it can overturn a conviction; it is a separate path from a civil malpractice suit.
L
- Legal malpractice
- A civil claim against a lawyer whose negligence, breach of duty, or misconduct caused a client to lose money or a case. The client generally must prove the lawyer owed a duty, breached it, and that the breach caused a real, measurable loss.
M
- Malpractice insurance
- Professional liability coverage that pays claims against a lawyer. Oregon and Idaho require it, many states require lawyers to disclose whether they carry it, and most policies are claims-made.
P
- Privity
- The direct relationship between lawyer and client. Traditionally only clients could sue their lawyer; many states now let intended beneficiaries of a will or trust sue the drafting lawyer anyway.
- Punitive damages
- Extra damages meant to punish intentional or reckless misconduct. They are uncommon in negligence cases against lawyers but can come into play where a lawyer stole money or committed fraud.
S
- Standard of care
- The level of skill and diligence a reasonably careful lawyer would use in the same situation. A malpractice claim asks whether your lawyer fell below it, not whether they were the best lawyer available.
- Statute of limitations
- The deadline to file a lawsuit. Legal malpractice deadlines run from about one to six years depending on the state, and missing one usually ends the claim permanently.
- Statute of repose
- An outer deadline that runs from the date of the lawyer's act or omission regardless of when you discovered it. Once it passes, the claim is barred even if you never could have known.
- Summary judgment
- A ruling that ends a case, or part of it, without a trial because the key facts are not genuinely disputed. Many malpractice defenses are argued at this stage, often on causation or the deadline.
T
- Tolling
- Pausing a limitations deadline. Common reasons include ongoing representation by the same lawyer, the client's minority or incapacity, the lawyer's fraudulent concealment, or a written tolling agreement.
These definitions are general legal information, not advice about your situation. Terms can mean different things in different states. See your state's page or the deadline table for state rules.