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.
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