The Legal Profession Blog is reporting today on an interesting case that illustrates a problem that has bothered me for a long time. The story starts with a high school English teacher sitting in her living room when a small plane hit the roof of the second story of her home. She suffered no direct physical injury but went into a state of shock, which led to health problems. She retained an attorney to file suit against the pilot.
The attorney missed the one-year statute of limitations despite reminders and also failed to comply with discovery obligations and court orders. The suit was dismissed. The teacher then sued her attorney for malpractice.
A jury returned a verdict in her favor for over $5 million and the lawyer appealed. The Kentucky Court of Appeals affirmed the jury verdict of malpractice and punitive damages against the attorney but vacated some aspects of the damage award. In particular, the teacher's "case-within-a-case" proving negligence on the part of the pilot could not sustain a claim for punitive damages because of Kentucky's "impact" rule. The decision is available here.
I am very sympathetic to the plaintiff and I literally yell at my students that losing a case for a client by missing the statute of limitations deadline is one of the worst things they can do, but I have to say the court's conclusion here is not very convincing. The court essentially contradicts itself.
While saying that, to satisfy cause in fact, the plaintiff has to show that she "would have prevailed in the underlying case," it finds that the plaintiff meets the burden by showing that she "had a viable claim" and that she "lost the opportunity to maintain" it.
I am sorry but you can't have it both ways. If the law is that you have to show you would have won the case, you don't meet that burden by showing that you "lost the chance to try to win it." It is clear that the lawyer was negligent, but all that shows is that the plaintiff can show breach of duty. The court essentially gave the evidence of breach more value than it deserved. It held that evidence that proves breach can be used to prove causation. That, simply, makes no sense. I have always thought that the standard should be that the plaintiff show he or she lost the chance to win (and that the injury should be an amount equivalent to the value of that lost chance), but, as far as I know, that is not the law in any state.
But is it practicable to try a "case within a case" to prove proximate causation? I understand that to establish causation, the plaintiff must prove that but for the attorney's negligence, the plaintiff would have won her case. To establish that, would the plaintiff will have to go the full length to contest her whole case within the malpractice case as she would have done in the normal course? Would that amount to some sort of a mock trial within a real case? What happens if she wins and what happens when she loses?
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