The most misunderstood part of a legal malpractice lawsuit: the “suit within a suit” a/k/a the “case within a case”

Any time you hire a lawyer, there is at least the potential the lawyer will make a mistake. This is true whether the lawyer is representing you in a business transaction, a real estate matter, civil litigation, divorce, probate, or any other conceivable matter.

However, in a legal malpractice case, you not only have to present evidence that the lawyer made a mistake (which, in a strong legal malpractice case, may be relatively easy to prove), you also have to prove that whatever legal issue was handled by the lawyer on your behalf would have turned out more favorably for you if the mistake had not been made.

What this means in practice is that when you pursue a legal malpractice case against an attorney, you are actually pursuing at least two lawsuits at the same time, in the same court, before the same jury. However, there is only one defendant, your former lawyer or law firm. Though your former employer is the only defendant, the original case may literally have to be re-created and presented to the jury to decide how that would have turned out.

This applies to virtually every kind of legal malpractice case. For just one example: imagine you hired a law firm to represent you in a civil action against a former business partner. Your lawyer failed to file the action within the statute of limitations (or filed it, but made some mistake which resulted in the case being dismissed). In the legal malpractice action, you would have to re-create the original civil action against the former business partner. This might mean calling witnesses who would have testified at that original trial. The difference is, in this example, although your former business partner may testify at your legal malpractice trial, that partner is no longer liable for any damages. The jury would have to decide that you would have won if your lawyer had properly handled the litigation against the former business partner. But it would be your lawyer (or the insurance company if there is malpractice insurance) who would have to pay the damages. The former business partner would only have to deal with the inconvenience of testifying.

In other words, whatever kind of case or issue your attorney represented you in may have to be re-created in whole or in part during the course of the legal malpractice action. If you were represented in a divorce action, this might mean having the same witnesses who would have testified in a divorce trial testify during the legal malpractice case (including your ex-spouse,  a forensic psychiatrist, or your children if old enough). If your lawyer represented you in a real estate transaction that fell through, the original parties to that transaction might have to testify, etc. etc.

Sometimes, part or all of the evidence you need for the “case within a case” may be presented by an expert. But even the expert testimony still has to be based upon evidence, whether it is in the form of documents or testimony. There may be different options of presenting this evidence from the original case and different strategic considerations for each option.

Since I represent plaintiffs in legal malpractice cases, from my perspective, the better the documentary evidence that you have the better the chance of prevailing. That is why discovery is extremely important in a legal malpractice action and why legal malpractice cases often take several years to litigate. For example, you might have to depose a former business partner, or an ex-spouse, or as many witnesses as it might take to prove your original case.  As one court nicely summarized it:  “The manner in which the plaintiff can establish what should have happened in the underlying action, but for the attorney’s conduct, will depend on the nature of the attorney’s error. …  a plaintiff must recreate an action that was never tried. The plaintiff must bear the burden the plaintiff would have borne in the original trial. And the lawyer is entitled to any defense that the defendant would have been able to assert in the original trial.”

I will provide some specific cases in a future post, but for now the important point is that legal malpractice cases usually are complex because of the requirement that you prove the “suit within a suit”.  If your legal  malpractice case gets to a jury, that means you are engaged in two trials simultaneously, being heard at the same time. Depending upon the circumstances, this could mean having witnesses testify who had nothing to do with your lawyer, but were involved in the issue for which you hired the lawyer. It is one of the reasons why handling legal malpractice cases is an attorney is so interesting, I have an opportunity to learn about many different areas of law, not just one. 

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved