The “Case Within a Case” in Legal Malpractice Actions
In Nevada, the required elements of a legal malpractice claim are: (1) an attorney-client relationship; (2) a duty owed to the client by the attorney to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity possess in exercising and performing the tasks they undertake; (3) a breach of that duty; (4) the breach being the proximate cause of the client’s damages; and (5) actual loss or damage resulting from the negligence.
When the alleged malpractice occurred in the context of litigation (i.e., when the lawyer is representing the client in a lawsuit), the causation element of a legal malpractice action is often thought of as requiring a plaintiff to litigate a “trial within a trial” or a “case within a case.” In other words, a plaintiff in a legal malpractice case must show both the attorney’s negligence and also what the outcome of the mishandled litigation would have been if it had been properly litigated.
The “case within a case” presents lawyers pursuing or defending legal malpractice actions with a unique challenge. They must not only be familiar with the law and the facts pertaining to the alleged malpractice, but they must also be familiar with the law and the facts pertinent to the underlying matter in which the lawyer is alleged to have committed malpractice. If, for example, a lawyer accused of malpractice was handling a lawsuit that was doomed to fail despite the alleged malpractice, the alleged malpractice cannot be said to have been the cause of the plaintiff’s claimed damages.
At Lemons, Grundy & Eisenberg, we have extensive experience defending attorneys accused of malpractice. If you are an attorney presented with a legal malpractice claim, or if you have questions about potential professional liability issues, the experiences attorneys at Lemons, Grundy & Eisenberg can help.