Legal Malpractice-The Case Within the Case

Brien Roche

Legal Malpractice-Case Within Case is a Damage Claim

When you’re dealing with legal malpractice in the litigation context, typically the plaintiff has to prove a case within the case. What that means is that the plaintiff has to first prove the underlying case. If the underlying case is a personal injury case, then that case is presented and the factfinder makes a decision as to what the verdict is. That verdict may be a monetary award of $100,000. 

That amount is what the plaintiff presumably would have recovered if the underlying case had been properly presented. 

Next the factfinder has to determine whether or not there was legal malpractice on the part of the attorney. If the legal malpractice is a so-called “per se” violation, then that issue becomes fairly simple. A per se violation would be something such as allowing the statute of limitations to expire. As a result of that, the plaintiff recovered zero. Based on the presentation made in the underlying case, the factfinder determined that the outcome was $100,000. That means that the plaintiff’s award in the legal malpractice case would be $100,000.

Wrongful Death Action

That problem of determining what the underlying decision maker would have done is seen in the case of Patterson v. Anderson, 194 Va. 557 (1953). In that case the plaintiff sued the administrator of an estate for failure to prosecute a wrongful death action. Under the wrongful death action the plaintiff would have been a beneficiary of the claim. It was however totally discretionary with the jury as to how much would have been awarded to that beneficiary. The court concluded that was entirely speculative and incapable of proof and therefore no cause of action was stated.

It’s not clear in the context of that case as to exactly how it was pled. If properly pled, the plaintiff should have stated he is a beneficiary and intended to present evidence of the overall claim as to the loss by each beneficiary and as to the specific loss by this beneficiary. In that context, that case probably would have been properly pled and could have been presented to a jury for determination as to what that particular plaintiff’s recovery would have been. 

Legal Malpractice-Case Within Case is Equity Action

Where the underlying case is a legal claim for damages, then that type of action is fairly straightforward. The plaintiff simply presents the underlying action and the factfinder (jury or judge) determines what the award would have been. 

However where the underlying action is an equity action or chancery action, that becomes more problematic. 

In Whitley v. Chamouris, 265 Va. 9 (2003), the court dealt with an issue of whether an expert on behalf of the plaintiff could express an opinion as to what the outcome would have been in the underlying case. The court concluded that the expert could not testify to that. That is, the testimony was not allowable under Va. Code § 8.01-401.3. 

That probably was the correct ruling. 

However that particular problem of proving the underlying case could have been overcome by simply presenting the evidence that would have been presented during the chancery case and letting the court decide that issue. That issue would not be jury-demandable because as a chancery action it is decided by the court, not by a jury.

Non-Judicial Tribunal

A somewhat different twist on that scenario is seen in the case of Ripper v. Bain, 253 Va. 197 (1997). In that instance the defendant attorney is alleged to have improperly projected whether or not a road that ran through a piece of property could have be legally blocked. The attorney expressed the opinion that it could be blocked. That called for a projection as to what the county Board of Supervisors would have done. The court acting as trier of fact could not have made that projection. Likewise a jury could not have made that projection. As such the malpractice claim failed. 

Legal Malpractice-Appeals

That problem of causation becomes more stark when you’re dealing with an appeal. For instance an attorney fails to file a timely Notice of Appeal. The standard on review is whether the client can prove that if a timely notice had been filed, as a matter of law judgment would have been entered in favor of the plaintiff. A trial court cannot sit as an appellate court and project what the appellate court might have done. As such in that context it may well be impossible for the plaintiff to prove their case. 

Call, or contact us for a free consult. Also for more info on legal malpractice see the Wikipedia pages. Also see the page on this site dealing with malpractice issues.