Idaho joins the modern trend that requires proof of "the case within the case" in legal malpractice cases based on alleged negligence in litigation

 I have to confess that I assumed that, as part of the analysis of cause in fact, all states required a plaintiff in a legal malpractice cased based on alleged negligence in handling the litigation of case to argue that they would have won "the case within the case" (or, in other words, that they would have won the underlying case had it not been for the negligent conduct of the defendant lawyer).  But it turns out that until recently, Idaho apparently did not require this.  Now they do.

Last week, the Legal Profession Blog reported that the Idaho Supreme Court decided a case in which it rejected a standard that the suing plaintiff only had to show "some chance of success" in the underlying medical malpractice case.  In doing so, the Court adopted the much more popular test of requiring the plaintiff to show that they would have won the underlying case (had it not been for the negligent conduct of the defendant lawyer).  This analysis is usually referred to as the "case within the case" analysis because it requires the plaintiff to show that they would have won the underlying (old) case in order to be able to win the new case they are litigating.  (Note that the court apparently says that showing the case within the case is needed to meet the element of proximate cause, although it is more accurate to say it relates to cause in fact.)

Meeting the case within the case standard makes it more difficult for the plaintiff to support their claim but it is the logical analysis that is consistent with the notion of cause in fact.  And, like I said, I always thought it was "universally" accepted, but now I see I was wrong about that.  

So I wonder if there are any other states that still recognize a cause of action without requiring that the plaintiff meet the "case within the case" approach.  Do you know of any?  

The case is called Rich v. Hepworth Holzer and you can read the opinion here.

Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default

A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers).  Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense.  My original comment explaining why the tactic was likely to fail is here.  

As I predicted, the tactic not only failed, it backfired spectacularly.  See here.  First it resulted in an order to explain his argument and eventually in a finding of liability by default.

Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.   

Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone.  And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high.  Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.

Giuliani is in real trouble.  He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress.  He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case.  Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds.  (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)

You can read the court's opinion here.  You can find reports and commentary on the default judgment against Giuliani in the following:

Courthouse News Service

The Legal Profession Blog

NPR

The Guardian

Above the Law

NPR audio

Jurist

MSNBC