And no, both attorneys would not be sued. You could conceivably sue your own attorney for ineffective assistance, but simply being wrongfully convicted isn’t evidence of that, just like a bad outcome isn’t necessarily malpractice so you might not prevail.

Or, if you can show some active misconduct on the prosecutor like knowingly withholding evidence you could conceivably make a claim there. Although I think those are mutually exclusive claim.

But it may be that you were just mistakenly convicted by the jury. Or maybe new technology has come out which exonerates you that didn’t exist then.

Where I think you’re getting off base may be mixing criminal law v. civil law. A malpractice claim is a civil claim – ie, you’re suing for money damages (generally). A criminal action is the state prosecuting someone with a penalty of incarceration. There are no money damages, other than restitution, for example.

As for defensive medicine it’s a lobbying term meaning whatever you want it to mean. There is no reform currently proposed that will reduce it however defined.

With regard to midwest woman’s comment, if I said that I misspoke. You’re a malpractice victim only if malpractice is the cause of your injury.

” It’s a moot point because the victims in this case can’t sue. My point is that when it comes to the legal profession the rules are different.”

You keep saying this, but you keep being wrong. The elements are the same to prevail in both. I’m not sure that you have to have an expert as often in legal malpractice, so it’s actually easier to pursue that.

You may be confusing suing with prevailing. The point of a lawsuit is to gather the facts and determine if there is liability. If there is, then the damages are determined. There is no more hurdle to file a legal malpractice claim than a medical malpractice claim. In fact, it’s MORE difficult to file the med mal claim in many states as some require a pre-suit affidavit from a physician.

I can’t answer your last question because it’s based on a false premise. There is a right to pursue a legal malpractice claim.

Are you referring to a wrongful conviction case? In that situation, who are you wanting to sue? Defense lawyer, Prosecutor, jurors?

I have heard you claim you prefer a free market system but lets admit that’s not real world at this point either. The government is stepping in and cost control is next on the agenda. Defensive medicine does play a role in this – as does patient expectation of workups for unlikely or self-limited diagnoses.

In a previous post midwest woman tried to distinguish between malpractice and unavoidable bad outcomes. You commented that to the “victims” it didn’t matter. Most bad outcomes are because of bad diseases.

If my example were a medical case, it wouldn’t matter whether the lawyers had done wrong or not. Even if they had acted perfectly,
lawsuits would be filed anyway since the outcome was clearly bad. That is what often happens in medical suits. It’s a moot point because the victims in this case can’t sue. My point is that when it comes to the legal profession the rules are different.
Please tell us why these individuals do not have a constitutional right to sue given that they have been severely harmed by the legal system.

No, there are not special courts for family courts. You don’t get a jury trial, though. But domestic relations isn’t a suit at common law pursuant to the 7th Amendment.

“Just because these views aren’t meeting with legislative action doesn’t mean that people don’t have them – but that the political will simply isn’t enough.”

True. But when we talk “tort reform”, that’s what we’re talking about. If you want hypotheticals, that’s fine. I’m a little more focused on the real world.

Not sure how that has anything to do with it. The jury makes the decision as to the malpractice. The judge is the referee on evidentiary decisions. Do you think the attorney for the plaintiff is holding back because the defendant is a lawyer?

” If this were medicine, the prosecuting attorney would be sued for wrongful prosecution and probably lose his license, the defense attorney would be sued for failure to prevent the conviction, and the jury would be sued for an egregious mistake.”

That would be incorrect. However, if you want to move malpractice to the criminal arena, by all means lets do so. Let’s not make it civil damages the penalty, let’s make it jail time.

” The victim (you refer to patients who have bad outcomes as victims in your posts, even if the bad outcome is a result of their disease process) ”

No, I refer to the victim as someone who has an injury as a result of malpractice. You assume the other.

“So the legal profession has the same malpractice burdens as the medical profession?”

Yes. You seem to think that a conviction later overturned due to DNA evidence is only the result of prosecutorial misconduct or defense error. Why do you believe this?

You’re right, agents of the state do have some limited immunity. As do physicians who work for the government. So yes, the legal profession has the same malpractice burdens as the medical profession.

Of course special courts exist for other things right like vaccines?, family courts?, special masters?, etc. I’m not well versed on all the variations but they do exist.

That said the fact that there is no legislation being proposed for such is because – lawyers oppose it, physicians are unorganized, it is difficult to design/implement as compared with caps on damages which are pretty easy to put into place, and insurance companies which have the most money to spend gain much more from caps than they would from health care courts.

Just because these views aren’t meeting with legislative action doesn’t mean that people don’t have them – but that the political will simply isn’t enough.

Over 250 convicted people have been exonerated of their crimes by dna evidence, some of these individuals being sentenced to die. If this were medicine, the prosecuting attorney would be sued for wrongful prosecution and probably lose his license, the defense attorney would be sued for failure to prevent the conviction, and the jury would be sued for an egregious mistake. The victim (you refer to patients who have bad outcomes as victims in your posts, even if the bad outcome is a result of their disease process) would receive enormous compensation for psychological suffering and loss of income (average of about 13 years incarceration per the innocence project). Currently in 36 states they receive NO compensation and are not permitted to sue the state because of “soveriegn immunity”.

So the legal profession has the same malpractice burdens as the medical profession?