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Professional malpractice is also referred to as professional negligence in Illinois. Negligence involves damages that are caused by the breach of some kind of duty. Thus, in order to prove negligence, one must prove four elements: duty, breach, proximate cause, and damages. The theory behind professional negligence is that every professional already has a duty to meet certain standards for their clients or patients. Thus, in professional negligence cases, the first element is automatically given and most of the litigation involves disputes over whether the other three elements of breach, proximate cause and damages existed.

For example, if a lawyer fails to file a claim before the expiration of a case’s statutory time limitation, that lawyer’s client may have a cause of action for legal malpractice. In court, it will already be established that lawyers have a duty to file cases before the statute of limitations expires. Thus, the case will revolve around whether the duty was breached and if so whether the breach was the proximate cause of any damages. Because legal malpractice case involve lawsuits within lawsuits, a jury would have to decide whether the first lawsuit would have prevailed and if so for how much. If the first lawsuit would have failed regardless of a lawyer’s breach, then there would be no damages, and thus, no professional negligence.

Almost every lawyer that we know for these cases handle them on a contingency basis which means that they get a percentage of what they recover. As a result, if they don’t believe that they will be able to get a significant financial recovery for their client, they are less likely to take the case.

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