While you can't expect an attorney to win every case that they try, they do have a legal and ethical duty to represent their clients competently. If an attorney neglects a case and doesn't collect enough evidence to prove it in court, then they may be legally liable for losing the case for their client. This can happen when an attorney takes on a caseload that's too high for them to handle comfortably, resulting in them spending very little time collecting evidence during the discovery phase.
Without sufficient evidence, they will have a very difficult time proving the case when it goes to trial. To learn more about evidence discovery and when an attorney may be legally liable for not finding enough evidence to prove a case in court, read on.
What Is Discovery?
Discovery is a phase that occurs before the trial in which both attorneys search for evidence pertaining to the case and share it. This can include evidence like recorded witness statements, security camera footage, and financial records. Attorneys commonly subpoena people who aren't involved in the trial to collect this evidence.
Although surprise witnesses and secret evidence are popular plot points in legal dramas you may watch on TV, they don't exist in real life. The only evidence that is allowed to be presented at trial must be disclosed during the discovery phase. Because of this, the discovery phase is extremely important — an attorney that neglects the discovery phase may be unable to present enough evidence to prove the case during the trial itself.
When Could an Attorney Potentially Be Found Negligent for Inadequate Discovery?
If an attorney doesn't find vital evidence during the discovery phase, it could be considered negligence if the average attorney would have been expected to find it. For example, videos from store security cameras and statements from witnesses would be very important to prove a case involving someone who injured themselves by slipping and falling in a grocery store. It's expected that a competent attorney would request security camera footage and seek out witnesses to prove the case. If an attorney didn't look for this evidence, then they may have committed legal malpractice when representing their client due to their carelessness.
However, failing to find evidence isn't enough to prove negligence on its own. The missing evidence also needs to be important. If you sue a former attorney for legal malpractice because they didn't find vital evidence, then the legal malpractice attorney you hire will need to convince the jury that the case would have been successful if the missing evidence was included.
What Should You Do if You Think Your Attorney Failed to Find Enough Evidence for Your Case?
If you feel that your attorney didn't question enough witnesses or collect enough evidence and you lost your case as a result, you should contact a legal malpractice attorney in your area and ask for a consultation. A legal malpractice attorney can go over the details of your case with you, including the evidence that was collected during the discovery phase. If important evidence was neglected, you may be able to sue your former attorney and receive compensation in the form of legal fees and damages for the case you would have otherwise won if the attorney wasn't negligent in collecting evidence.