100 years + of collective legal malpractice experience

Case-within-a-case: Did your lawyer mishandle your lawsuit?

by | Nov 16, 2022 | Duty of Care, Legal Malpractice, Trial Errors |

For a legal dispute to make it to court, it is normally a major event to those involved on both sides of the conflict – whether plaintiff or defendant. So many factors influence the nature of what is at stake:

  • Is the suit personal or commercial?
  • Are the potential financial losses or gains substantial?
  • Do the underlying circumstances raise emotions – think feelings like anger, indignation, pain, regret, sorrow, guilt and others – or did the situation cause trauma?
  • Is the level or nature of the conflict extreme?
  • Does the dispute involve an injury or death?
  • Does the plaintiff allege unfair or illegal treatment? Does the defendant dispute this?
  • And others

In such an important matter, choosing your legal representative is a huge decision. The client has the right to expect professional advocacy in keeping with the lawyer’s reasonable duty of care to their client throughout the litigation. But what if the plaintiff’s attorney makes mistakes in preparation for or during the trial to the detriment of the client? Or what happens when legal counsel brought in to defend their client in court fails to deliver a sound defense?

Legal malpractice cases when the alleged lawyer negligence involved litigation

During the litigation process, a lawyer must use the duty of reasonable care when providing professional services. When an attorney breaches this duty and their negligence causes harm to the client in a lawsuit, the client has the right to seek damages against their former counsel in a legal malpractice suit.

Typically, the party harmed by their lawyer in litigation seeks a new attorney with experience and skills in bringing this kind of legal malpractice claim. Specifically, the malpractice lawyer essentially retries within the malpractice trial the underlying litigation without the alleged errors made by previous counsel – hence, the case-within-a-case, also called the trial-within-a-trial or the suit-within-a-suit. The malpractice attorney needs to show that without the first lawyer’s negligence, the malpractice client would have won the case or at least done better.

Examples of the kinds of missteps an attorney might make that could rise to the level of malpractice in litigation:

  • Failing to file a lawsuit or missing the filing deadline (statute of limitations)
  • Failing to sue all essential or possible parties
  • Failing to conduct an adequate investigation or perform thorough research
  • Failing to properly serve the notice and complaint on the defendants or to file all required documents with the court
  • Failing to include all viable legal claims in the complaint or defenses in the answer
  • Failing to answer the complaint on time, thereby giving the plaintiff a default judgment
  • Failing to conduct thorough discovery (the right before trial to ask parties and witnesses questions under oath and request documents from the other party to uncover evidence)
  • Neglecting to appropriately participate in the jury selection process, if applicable
  • Making inadequate or mistaken arguments in court, failing to object when appropriate to the other side’s witness questioning or evidence
  • Failing to call all necessary witnesses, including expert witnesses when necessary
  • Failing to submit relevant evidence or ask key questions of witnesses
  • Failing to make appropriate motions
  • Failing to discuss with the client the right to ask for a new trial or a judgment notwithstanding the verdict or failing to file these on time
  • Failing to discuss with the client the right to appeal or filing an appeal late
  • And other negligent professional choices a lawyer could make in litigation

At the malpractice trial (link goes to brochure discussing case-within-the-case generally and under California law), the plaintiff’s lawyer would, in essence, reproduce the underlying trial – except without the negligent omission or mistake – in an attempt to prove that if the original attorney would have upheld their duty of care in the original litigation, the client would have done better. This suit-within-a-suit is the way to prove that but for the lawyer’s negligence, the client would have had a more favorable outcome, usually financially. In other words, the original attorney’s negligence caused the client harm, a necessary element of legal malpractice.


This introduces a high-level subject within legal malpractice law. A knowledgeable lawyer can answer questions about your particular circumstances.