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What do Malpractice Lawyers Mean When They Refer to the “Underlying Case”?

In a malpractice case, the plaintiff must show that the lawyer breached the standard of care and that the lawyer’s error cost the client money. In most cases, the only way to prove this is to examine the underlying case. The underlying case is the prior case that was handled by the lawyer who allegedly breached the standard of care.

Because underlying cases can come in a variety of disciplines, we have to learn how to analyze (and sometimes prove-up) the allegations of the underlying case.

An example would be a personal injury case that was dismissed because the lawyer missed the statute of limitations. To prove that the error caused the client to lose the case, we must show that the underlying personal injury case had merit and prove the allegations contained in that case. If the underlying case was not well-founded, the lawyer’s error did not cause the loss. The client would have lost the case anyway.

In every matter we accept, we must determine whether the underlying case (contract, personal injury, business tort, etc.) had merit.

Thus, to prove a legal malpractice case we must often prove two cases, the malpractice case, and the underlying case. The analysis we do can be very complicated. Sometimes we must become experts in the field of the underlying case, such as personal injury.

So, if your legal malpractice case is declined it is often because we don’t think we can prove that the client would have won the underlying case.

Ed Clinton, Jr.

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