Proving Causation in a Legal Malpractice Claim
Aside from proving that there is substandard or subpar behavior the plaintiff must be able to show that substandard behavior caused injury to the client. That issue of causation frequently becomes a tricky one.
For instance in a case where the attorney allows the statute of limitations to pass. It may be that the lawyer is negligent as a matter of law. However suppose the underlying claim had no merit to begin with. The attorney didn’t cause any loss to the client. Even if the statute of limitations had been complied with the client would not have recovered any money because the case simply had no merit.
Of course if the attorney tries to make that argument in defense of a legal malpractice claim that raises the question of why the attorney took the case to begin with.
Legal Malpractice Causation Damages-Uncertain Causation
Suppose the attorney is handling a zoning transaction for the client. The task for the attorney is to convince local zoning officials that the property should be rezoned to allow a larger building that the client wishes to construct. The attorney then fails to file the necessary paperwork in a timely fashion. During that resulting delay period there is a change in the composition of the zoning board. The majority of the new zoning board is opposed to this larger structure. The political composition of the prior zoning board is a bit of an unknown. How any one of them would’ve voted on this particular structure is uncertain.
Even though the attorney may have been negligent for the delay in filing it is tough to show that delay caused damage to the client. It may be the prior zoning board would have rejected the zoning request anyhow.
Failure to Appeal
Another example. Your attorney has tried a case for you and the verdict was unfavorable. The attorney did a fine job at trial. You instruct the attorney to file an appeal. The attorney misses the deadline for filing the appeal. This is a per se violation and the attorney is probably negligent.
The question then becomes would you have prevailed on appeal. That involves a large dose of guesswork. The guesswork is trying to figure out what several judges on the appellate court may or may not do. That guesswork probably defeats the claim. It becomes almost impossible to conclude that the appellate court would’ve reversed the trial court decision. As such the causation is missing.
However, if the claim on appeal could and would have been ruled on as a matter of law then causation may exist. Wintergreen Partners v McGuire Woods 280 Va 374 (2010). See also the blog on this site dealing with the case within a case.
In A Legal Malpractice Case What Damages Are Recoverable May Define The Merits Of The Case
In a legal malpractice case what damages are recoverable govern whether the claim is worth pursuing. Many lawyers reviewing a legal malpractice case look at the case from the backside. That is what might the case be worth assuming all the elements can be proved. In looking at the value of the case it must be kept in mind that a legal malpractice case is just a contract case. It is not a tort case. Contract damages are different than tort damages.
Legal Malpractice Causation Damages-No Enhanced Value
If the underlying case is a auto accident case which the attorney handled in a substandard fashion then the legal malpractice case value is what the auto accident case was worth. If the auto accident case was only worth $10,000 then the legal malpractice case will be worth no more than that. There is no add-on because the attorney was negligent.
Types of Damages
Within the context of a legal malpractice case the damages that are recoverable may be referred to as “hard damages”. Or “economic damages” as opposed to “soft damages” or “non-economic damages”. The latter typically are not recoverable. Soft damages may be such things as emotional distress and other such non-economic losses. Economic damages are thought of as being able to be quantified. Non-economic damages are more subject to variation.
If the underlying case properly involved the recovery of non-economic damages or soft damages then those damages are includable. What cannot be recovered in a legal malpractice case are any damages in the nature of non-economic damages that were not part of the underlying case. For example, there is no basis for recovery for emotional distress damages as a result of the legal malpractice of the attorney.
There are several other blogs on this site dealing with different aspects of legal malpractice:
