When California residents hire an attorney, they expect him or her to represent them vigorously and competently. Sometimes, however, they lose their lawsuit and believe it to have been due to their attorney’s negligence. At that point they are faced with the prospect of suing the attorney for legal malpractice, a situation that often is called trying a case within a case.
As saclaw.org explains, the reason why such legal malpractice cases are called a case within a case is because in order to win your malpractice suit, you must prove that it is more likely than not that, but for the negligence of your former lawyer, you would have won the underlying lawsuit. Specifically, you must prove the following four things:
- You had an attorney-client relationship with your former attorney.
- Your attorney breached his or her duty of care; i.e., he or she was negligent.
- This negligence resulted in injury to you; i.e., you lost your lawsuit.
- This injury resulted in actual damages for you; i.e., you lost whatever amount of money you would have received had you gotten a favorable settlement or a favorable judgment at trial.
The case within a case
Trying a case within a case is extremely difficult and expensive. Basically you are trying the original lawsuit all over again. In addition, you have the added burden of proving that your former attorney committed some form of negligence, such as failing to adequately research your case or ignoring your instructions and failing to agree to the settlement offer you wanted to accept. Thirdly, you must prove that the defendant in your original lawsuit would have been able to pay the settlement or ultimate judgment amount.
Complex legal malpractice cases are fraught with pitfalls. First, you must file your lawsuit within one year after you discover or should have discovered your injury. Second, you may be required to hire expert witnesses to testify that you probably would have won your original lawsuit but for your attorney’s negligence. Finally, a jury can become confused when it must decide two cases at once.
Many people do file successful legal malpractice cases. However, each one depends on circumstances specific to the situation, so this general information should not replace the advice of an attorney.