Recreating a botched case to prove malpractice

California courts have an interesting way of investigating legal malpractice claims in court, known as the case-within-a-case method. While this method is not unique to the state, it is prevalent here. 

Those considering making a formal complaint or a professional negligence case against a lawyer could benefit from knowing how to prove wrongdoing in legal practice. Additionally, it may be prudent to set certain expectations, such as preparing an idea of the time and resource commitments typically necessary to pursue these claims.

The case within a case in malpractice court refers to a recreation of the original conditions surrounding the alleged injurious action. As explained in a paper from Ohio Northern University on the subject, this method is typically most useful when the action involves an unfavorable verdict in another case. In general, this requires juries and judges to hear a recreation of the original case as well as the new arguments of the legal malpractice claim.

From this description of the process, one could probably conclude easily that case-within-a-case procedures are often cost-intensive. Not only do the arbiters of the matter need time to consider two separate sets of evidence and argument, but also both parties must prepare two cases. As mentioned in the FindLaw section on legal malpractice, there are often several courses of action that are preferable to filing suit, especially for smaller issues of potentially unethical behavior. Here are some preliminary solutions suggested in the article:

  • Inquiring about the ethical infringement
  • Objecting to excessive or unwarranted billing
  • Obtaining a second opinion
  • Initiating mediation or non-binding arbitration

The FindLaw article mentions many different types of malpractice. Each has its own methods of investigation and resolution, and its own case law history in California.