Articles Posted in Case Within A Case

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KELLEY & WITHERSPOON, LLP v. Hooper, Tex: Court of Appeals, 5th Dist. 2013 – Google Scholar.

When the claim is that a lawyer breached the duty of care and thereby lost a case, the plaintiff must prove a case within a case, that is, that but for the lawyer’s negligence the plaintiff would have won the underlying case.

The Hooper case is a routine legal malpractice case in which the lawyers allegedly failed to sue the correct defendant in an auto accident case. At trial the jury found the law firm negligent and awarded damages of $235,000.

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Goldfine v. BARACK, FERRAZZANO, KIRSCHBAUM AND PERLMAN, Ill: Appellate Court, 1st Dist., 6th Div. 2013 – Google Scholar.

The Illinois Appellate Court, First District, Sixth Division, has affirmed a judgment entered in favor of the plaintiff and against a defendant law firm. The allegation of negligence was that the law firm failed to preserve the plaintiffs’ claims under the Illinois Securities laws against Shearson Lehman. In short, the alleged error was the failure to timely file a claim for rescission against Shearson Lehman.

In a legal malpractice case, the court must always begin with an analysis of the underlying transaction or the underlying lawsuit. Here, the plaintiffs had a valid claim under the Illinois Securities Laws against Shearson Lehman. Under the Illinois Securities Law, the purchaser has six months from the time he learns of the right of rescission. The law firm failed to serve the notice of rescission and the Illinois courts rejected the plaintiffs’ claims as time-barred.

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Osborne v. Keeney, Ky: Supreme Court 2012 – Google Scholar.

This is a legal malpractice case in which the plaintiff alleged that her lawyer failed to file a lawsuit on time and missed the applicable statute of limitations.  The Kentucky Supreme Court upheld the claim and addressed other issues as well.  The court held that punitive damages are not recoverable against an attorney in a legal malpractice case.

The opinion reaffirms that the plaintiff in a legal malpractice case must prove a case within a case.  The court set forth the method for proving the case within a case requirement:

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Legal Malpractice Case From North Carolina

Royster v. McNamara, 723 SE 2d 122 – NC: Court of Appeals 2012 – Google Scholar.

This is a legal malpractice case arising out of a litigation matter.  The plaintiff, Royster, was a defendant in the underlying case, a fraud case.