Is it an appealable error or attorney malpractice?

In my previous posts, I've examined the types of errors that an appellate attorney may find in reviewing the record.  Some of these errors, such as prejudicial error or error that is reversible per se, strengthen an appeal.  Others, such as harmless or invited error, can ruin the chances for a successful appeal.

It isn't uncommon for the client to wonder why he or she lost at trial, especially when so much of the trial is difficult for a layperson to comprehend.  There are times when the client will ask about an appeal but the real remedy is an action for attorney malpractice.  For instance, if the trial court dismisses a case because the plaintiff has blown the statute of limitations, the error could be due to an attorney’s negligence and the judge’s order was proper.  Other errors are not so obvious to a client.  For example, the attorney may have failed to preserve the record by not making a proper objection or an adequate offer of proof.  If the attorney has committed these errors, especially failing to raise matters below, then the client’s remedy is beyond the reach of an appeal.

As an appellate attorney, I often receive case referrals from trial attorneys.  Of course, I want to honor these valuable associations but the duty to the client transcends these relationships.  Quite often, the relationship between the client and the attorney is already fractured, and the client may even suspect attorney malpractice.  I have to tell the client that the error is not appealable but there is a potential malpractice claim. 

In many of those cases, the client has had some warning about the attorney's performance but for whatever reason, the client hoped the attorney's performance would improve.  Perhaps the answer lies in educating the public about what they have a right to expect from an attorney, how to address their complaints about an attorney's performance (or lack of it), and when to end the relationship without prejudicing their rights.