When the verdict goes against you in court, it can be shocking – and expensive. This is especially upsetting if you believe it was because of your lawyer’s negligence. An attorney has an ongoing duty when representing a client in litigation to exercise reasonable care at every step – from trial preparation to courtroom performance as well as in compliance with deadlines and court rules.
In a previous post, we explained in detail the basic principles of proving legal malpractice in the context of litigation. This kind of malpractice claim involves the complexity of revisiting the earlier trial in which the first lawyer was allegedly negligent.
From a simplistic view, imagine that in a sense within the second trial, the first trial is reenacted like a play. The purpose of the malpractice trial is to reexamine the underlying trial to determine if the lawyer there was negligent and if that breach of the duty of care caused harm to the client in the outcome of that trial.
Or would the client have been successful in the first trial if the lawyer had been careful and competent? Would the client have won money damages and how much (and would they have been collectable)?
How do you prove the hypothetical outcome of the case-within-a-case?
In the legal malpractice case, the plaintiff must, in essence, recreate the underlying trial so the malpractice court can rule on what the outcome would have been absent the legal malpractice. As a judge wrote in LNV Corporation v. Branch Banking and Trust Company, a federal case in Pensacola (applying Georgia law) comparing the trial-within-a-trial in a contract case to that in a legal malpractice claim, the malpractice plaintiff must provide the record, filings and orders in the underlying action to the malpractice court so it can decide its merits – or what its merits would have been without the original lawyer’s negligence.
The court wrote further, “LNV neglected to provide the Court with a meaningful, independent briefing on the legal issues and evidence facing the state court in the underlying case, despite the fact that by all accounts the case was both complex and vigorously contested on both sides.”
The opinion also explained that a judge or lawyer’s testimony in the malpractice case about what a jury or judge would have done with the underlying case is “generally improper.” Rather, the judge in the malpractice case makes their own determination of the probable outcome of the case-within-the-case absent attorney negligence.
(The LNV Corporation case is available on Westlaw at 2016 WL 11480178.)