During a wrongful termination lawsuit (which was lost) our lawyer failed to submit the motion to compel during the discovery phase to get evidence from the opposing side. He also failed to submit evidence by the deadline for the hearing, which prohibited us from using videographic evidence. All this was done despite the fact that I compiled everything needed and sent it to him via email well in advance of the deadlines. He essentially just needed to submit the motion at one point and the evidence at another. Both deadlines were missed which cost us a fair amount of evidence in the case and greatly hindered our defense. Not to mentioned how ill prepared the lawyer was with the evidence we did have at the hearing.
It isn't sufficient for an attorney to miss a deadline alone. For a malpractice lawsuit, the attorney's mistake must be the actual reason that caused the client to lose the case. The client, who becomes the plaintiff in the malpractice lawsuit, must show that the results would have been different without the mistake. The client, then, must prove both cases. This is known as the case within a case rule.
A malpractice case against an attorney will require an attorney to testify as an expert witness regarding the standard of practice. This is not something you will be able to do on your own as a self represented party. I suggest you consult with an attorney who handles legal malpractice cases, as soon as possible.
In my experience, you have a very tough road to make a claim on these facts.
Whether to file a Motion to Compel is always a difficult and complex strategic decision, and there are almost always sound and compelling reasons against. Similarly, a decision not to submit evidence by a deadline may be entirely justifiable if the attorney made a judgment call that the evidentiary material would not be helpful or admissible.
It is a fact that trial strategies are always complicated and nuanced. There are inevitably good arguments for all courses of action and decision. It would be highly unusual for a claim of professional malpractice to succeed based solely on second-guessing the strategic judgments of the trial attorney. Nothing about what you have summarized here suggests that the conduct in your case will not be subject to these general principles: judgments even by skilled and experienced counsel can differ. Hindsight is always 20-20, but liability and analyses of allegations of ethical violations are not judged by such a rigid measure.
I am afraid that there is not enough information here to show whether or not legal malpractice was committed. You will need to have an attorney willing to testify that the actions of counsel were below the standard of practice for lawyers practicing in your community, and that the actions caused a bad result in the matter.
