Legal Malpractice Avoidance Tip – Case Within a Case
To succeed on a claim of malpractice against his or her current or former attorney, a plaintiff must demonstrate that he or she would have prevailed in the case in which the alleged negligent representation was committed. This is known as the “case within the case” or may be referred to as the “underlying matter.” A plaintiff must first prove that the lawyer did breach their duty of care, and second, must prove that had the lawyer acted properly, the outcome of the underlying matter – be it a litigation or transactional case – would have been different. This is necessary to establish and prove that the lawyer’s negligent conduct was the proximate and actual cause of the plaintiff’s damages. This concept is most easily illustrated using a personal injury lawsuit as an example.
Consider a client injured in an automobile accident. She hires a lawyer to sue the other driver. The lawyer inadvertently files the complaint after the statute of limitations has run. Since the lawyer missed the statute, it may seem obvious that he has done something wrong and thus committed malpractice. However, to succeed on the claim of malpractice, the plaintiff must also prove that had the lawyer filed within the statute of limitations the court or jury would have found in the plaintiff’s favor and awarded damages. Filing outside the statute of limitations by itself is not enough to succeed on a malpractice claim. The one exception to this is in Louisiana, where courts hold that once a client has established a lawyer-client relationship and the lawyer acted negligently, the client has established a prima facie case that the lawyer’s negligence has caused some loss. The reasoning is that a lawyer would not have taken a case that had no value. It is worth considering that the current rule, requiring the client to prove a case within a case, may impose too great a burden of proof to an already truly damaged plaintiff.