Legal Malpractice Actions Contain a Case Within a Case

By Thomas Greer | June 30, 2014

One of the things that a legal malpractice plaintiff must prove in order to win the case against the defendant attorney is that the defendant attorney’s mistake was fatal to their case. That is, they must provide the court with evidence that had the attorney not made the mistake that they did, then the case would have turned out differently in favor of the plaintiff. This element of a legal malpractice lawsuit is often referred to as the “case within a case,” because it involves reproducing portions of the plaintiff’s original lawsuit during which the attorney allegedly committed the mistake which led to the legal malpractice action.

The “case within a case” is an essential part of a legal malpractice action, because if the plaintiff could have lost their case anyways, regardless of the lawyer’s mistake, then they did not incur any damage as a result of the mistake. It makes sense that the court would require a plaintiff to show that they should have prevailed, because many plaintiffs who are simply unhappy with the result of their case seek to file a legal malpractice action without regard to whether the unfavorable outcome was due to their attorney’s mistake or not.

Presenting the “case within a case” in a legal malpractice action by recreating some or all of the original lawsuit will require some work. Exactly what type of work, and how much work, will be determined by the type of error that the attorney is alleged to have made. For example, if witnesses would have testified had the case not been dismissed due to your attorney’s mistake, those witnesses may have to testify as part of the malpractice action. If the alleged mistake happened during a deposition, the deposition may have to be retaken by the attorney representing the plaintiff in the legal malpractice action. There are as many variations on what a case within a case must contain as there are types of mistakes that are made by attorneys. The large amount of work that goes into recreating the portions of the original case that will be needed to prove legal malpractice can take a rather long time. For this reason, it is not uncommon for legal malpractice actions to take several years from start to finish.

Despite the fact that legal malpractice actions can take a relatively long time to be resolved, when a client has been harmed by an attorney’s negligence, it is important that they pursue a legal malpractice action so that they may recover for the harm that they have experienced. Legal malpractice actions also play an important role in the legal profession, because it is important that attorneys work carefully and diligently to represent the interests of their clients. Many mistakes that attorneys make can be remedied, if they are acknowledged promptly and attended to immediately. Unfortunately, some attorneys either fail to notice that they have made an error or attempt to sweep it under the rug, in the hopes that no one will notice.

If you think that you may have been damaged by an attorney’s negligence, the experienced Tennessee Legal Malpractice Attorneys at Bailey & Greer, PLLC are here to help you. To learn more, call 901-680-9777 to schedule a time to discuss your case.  At Bailey & Greer, PLLC, we are small enough to care, big enough to fight, and experienced enough to win.

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