St. Denis & Davey, P.A.

Legal Malpractice Issues

Attorney malpractice: The trial-within-a-trial

| Jun 8, 2021 | Damages, Legal Malpractice Law, Trial Errors |

At our law firm, we represent people who have suffered losses because their previous legal counsel negligently practiced law. While there are many circumstances in which legal malpractice can occur, when lawyers are negligent in preparation for trial or in the courtroom, to prevail in a later lawsuit for that malpractice, the client must show that they suffered loss because in the previous litigation the attorney breached their reasonable duty of care to the client.

Legal malpractice arising from litigation

This involves the concept of the “trial-within-a-trial,” also called the “case-within-a-case.” To break it down further, this phrase refers to the original trial in which the client alleges malpractice occurred and that is the subject of the later malpractice lawsuit:

  • Trial #1: Previous lawsuit or underlying action wherein the client says their former lawyer harmed them
  • Trial #2: Later legal malpractice suit in which the client must prove that the former attorney’s professional negligence in trial #1 caused loss to the client

Or, as the Florida Supreme Court has said, “the attorney must be the proximate cause of the adverse outcome of the underlying action which results in damage to the client.” Put another way, the malpractice plaintiff must show that they would have won in the underlying litigation had their lawyer not been negligent.

Proof of lost damages

Then, the client must provide evidence of an amount of money damages that would have been awarded to them in trial #1 had their previous lawyer not been negligent.

Finally, the client needs to prove that they could have collected the favorable result they could have recovered but for the attorney’s negligence in trial #1.

Similar, related circumstances

We should note that every malpractice case that involves previous litigation does not require proving what the outcome of trial #1 would have been. For example, the case might have settled, which does not necessarily mean that the client does not have a viable legal negligence claim.

This introduces a complex legal concept in legal malpractice cases arising out of litigation. Each attorney negligence case should be thoroughly investigated and analyzed to understand the legal issues that will arise at trial.