[1] A common example of legal malpractice involves the lawyer's missing a deadline for filing a paper with the court or serving a paper on another party, where that error is fatal to the client's case or causes the client to spend more money to resolve the case than would otherwise have been required.
[1] Under U.S. law, in order to rise to an actionable level of negligence (an actual breach of a legal duty of care), the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonably prudent attorney would make.
For example, in Iowa, a defendant who receives inadequate representation at sentencing was allowed to pursue a malpractice claim without also challenging the underlying conviction.
[6] In Kansas, a legal malpractice action was allowed when brought by defendant who was not claiming innocence but was instead asserting that an error by criminal defense counsel cost him the opportunity for a more favorable plea bargain.
[8][9] The Idaho Supreme Court found that to require a defendant to show actual innocence in order to proceed with a legal malpractice claim against a criminal defense lawyer would conflict with the presumption of innocence a defendant is to enjoy at trial, disregards harm that may result to a client other than being convicted, and potentially allow a defense lawyer to shirk duties to a client the lawyer knows to be guilty.