The economics of a legal malpractice case. In order to win a legal malpractice case, the plaintiff – the injured client – has the burden of proving that “but for” the lawyer’s malpractice, the client would have obtained a better result if the lawyer had acted as a reasonably careful attorney. This concept has become known as the “case within the case”. For example: if the lawyer’s malpractice caused the client to lose a car accident case, in order to win the legal malpractice case, the injured client would need to prove (1) that the lawyer was negligent and (2) that the client would have won the car accident case.
Because essentially the injured client has to prove two cases – the underlying original case and the malpractice case – a legal malpractice case has to have significant damages in order to make it economically feasible to prosecute. Often times, the cost of prosecuting a legal malpractice case – not including lawyer’s fees – can exceed $100,000.
With that in mind, at our law firm Glickman & Glickman — We Hold Lawyers Accountable, the potential damages becomes one of the most important determining factors to look at in deciding where to prosecute a legal malpractice case. Except for certain limited situations, the legal malpractice plaintiff can only sue to recover the economic damages representing what was lost in the underlying case; there are typically no emotional distress damages in legal malpractice cases. Also, the legal malpractice plaintiff can not recover for punitive damages that were lost in the underlying case because of the original lawyer’s negligence.