Thursday, November 19, 2009
A way around the "case within the case" problem?
Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney. As we all know, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases. Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid. The opinion is available here.