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In every legal malpractice case, the plaintiff is required to hire an expert witness, a lawyer, to testify that the defendant breached the standard of care. This is also required in medical malpractice cases.  Experts cost money that will inevitably reduce any recovery. So when you think of filing a legal malpractice case, you need to be able to plausibly prove a significant amount of damages before the legal malpractice case becomes worth pursuing. Small cases, for $10,000 or $15,000, don’t work economically. Indeed, most clients would be worse off if such a case were actually filed because the legal fees and expert fees would exceed the recovery.

Ed Clinton, Jr.

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In a recent California legal malpractice case, Andrade v. Purviance, No. A161331, California Court of Appeal, 1st Appellate District 2021, the court upheld the dismissal of a legal malpractice case against a criminal defense attorney where the plaintiff could not show that she had been exonerated.  In recent years, some scholars have criticized the rule, but it remains the majority rule in the United States. The court explained:

The elements of a legal malpractice action are “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).)

However, to succeed on a claim for legal malpractice arising from a criminal proceeding, a plaintiff also must prove that he or she is actually innocent. (Coscia, supra, 25 Cal.4th at pp. 1199-1200.) “In Coscia, the Supreme Court addressed . . . `whether a former criminal defendant must obtain exoneration by postconviction relief as a prerequisite to obtaining relief for legal malpractice.'” (Wilkinson v. Zelen(2008) 167 Cal.App.4th 37, 46.) The Coscia court concluded, “a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case—for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief—as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p. 1205, fn. omitted.) This requirement is grounded in the principles that criminal defendants are provided constitutional and statutory guarantees against ineffective assistance of counsel, and that guilty defendants should not be able to profit from their wrongdoing or shift responsibility for the consequences of their illegal behavior to their criminal defense counsel. (Id.at pp. 1203-1204; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537-538, 542-543.) Moreover, the actual innocence requirement avoids the risk of inconsistent resolutions in criminal and civil proceedings, serves judicial economy by precluding malpractice actions where a criminal defendant has been denied relief on the basis of ineffective assistance of counsel, and encourages attorneys to represent criminal defendants by reducing meritless malpractice claims. (Coscia, at p. 1204.)

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The case is ALPS Prop. & Cas. v. Keller, Reynolds 482 P.3d 638 (Montana, 2021). After purchasing the malpractice insurance policy, the firm sought to tender a malpractice claim to the insurer. Unfortunately for the lawyers, the insurer denied coverage because the law firm knew the basis of the malpractice action before it purchased the insurance policy. The Montana Supreme Court held that there was no coverage under the policy because the law firm (through one of its partners) was aware of the potential claim before purchasing insurance.

The reasoning:

¶16 Here, the Policy contains two provisions—one coverage provision, and one exclusionary provision—that enforce this basic concept. First, in defining the scope of the Policy’s coverage, provision 1.1.2 states that ALPS “agrees to pay on behalf of the Insured all sums (in excess of the Deductible amount) that the Insured becomes legally obligated to pay as Damages, arising from or in connection with a Claim first made against the Insured and first reported to [ALPS] during the policy period, provided that at the Effective Date of [the] Policy, no Insured knew or reasonably should have known or foreseen that the act, error, omission or Personal Injury might be the basis of a Claim….” (Emphasis added.)

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In any lawsuit, the plaintiff must prove proximate causation, that the actions of the defendant caused him injury. Here, in a bankruptcy malpractice case, the plaintiff was unable to prove proximate causation.

Plaintiff alleged that the bankruptcy lawyers breached the standard of care when the failed to extinguish a liability for $2.1 million from a lawsuit. The law firm obtained summary judgment because plaintiff had never paid one penny of that judgment. Thus, whatever law firm allegedly failed to do, plaintiff suffered no actual damages.

Sam v. Ledbetter Law Firm, PLC, Court of Appeals of Arizona, Division One, August 24, 2021. The explanation:

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Horvath v. Budin, Reisman, Kupferberg & Bernstein, LLP, 2021 NY Slip Op 30105 is a legal malpractice claim arising out of a bankruptcy matter. In particular, the claim was that the bankruptcy firm failed to list Horvath’s personal injury case in the bankruptcy schedules, resulting in the loss of that claim. The Law Firm moved to dismiss. The trial court denied the motion to dismiss. The reasoning:

The pertinent facts:

Plaintiff filed an amended complaint on May 19, 2020 alleging, inter alia, that:

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Short v. Grayson, No. 16-cv-2150 N.D. IL, September 3, 2021 is a malpractice case where the plaintiff alleged that his lawyer was negligent in handling litigation. The problem was that the litigation reached a final adverse judgment in 2013, but the malpractice case was not filed for three years. The District Court, in my view correctly, ruled that the case was barred by the statute of limitations. Some of the discussion follows:

The briefs are chock-full of hotly contested issues, but there is a need to address only one. Almost two and a half years after the end of the state court case, Short filed this federal case against his attorneys, alleging legal malpractice. A malpractice claim has a two-year statute of limitations. So he missed the deadline, and the claim expired.

The only claim against Donner is legal malpractice. Under Illinois law, a malpractice claim has a two-year statute of limitations. A malpractice claim “must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.” See735 ILCS 5/13-214.3(b).

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Frequently we get calls from a former client of an attorney who believes that legal malpractice may have occurred. Please note that if a case is voluntarily dismissed, the client has one year to refile the case. 735 ILCS 5/2-1009. Until that time period has expired, there is no legal malpractice case because the mistake or error can be corrected by the attorney or another attorney. Often a dismissal for want of prosecution is without prejudice and is not final so, again, that is not malpractice.  The question we ask is “Can the alleged error be cured?” If the problem can be cured, there is no malpractice.

Ed Clinton, Jr.

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Addali v. Boyer, No. 410, 2020 (Supreme Court of Delaware) holds that a legal malpractice plaintiff must obtain an expert witness to prevail at trial. In the Addali case the court affirmed the grant of summary judgment to the Defendant attorney.

Ed Clinton, Jr.

www.clintonlaw.net

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