8-2 "Trial Within a Trial"

• Jurisdiction: United States

8-2 "Trial Within a Trial"

Many attorney malpractice proceedings involve a so-called "trial within a trial."³ As such, the jury instructions often reflect the cause of action from the underlying case.

In Cunningham v. Koon,⁴ for example, a client sued a lawyer for legal malpractice, claiming the note the lawyer had drafted was void because it was usurious. After a verdict was rendered in favor of the client, the lawyer appealed, arguing that the jury had received a deficient instruction on the state of mind required to commit criminal usury. Agreeing with this contention, the appellate court reversed and remanded for a new trial.⁵

Where a trial within a trial is necessary, two sets of jury instructions should be used: one for the legal malpractice case and another for the underlying lawsuit. For example, if the legal malpractice case stems from a medical malpractice suit which was not filed within the applicable statute of limitations, separate jury instructions will be needed for the medical malpractice case and the legal malpractice case.

The failure to use two verdict forms was one of the reasons for the reversal in Michael Kovach, P.A. v. Pearce.⁶ The underlying case involved an automobile accident that resulted in a judgment against the driver of the automobile. The driver then sued his lawyer, claiming the lawyer had failed to properly assert a comparative negligence defense. As such, the jury in the legal malpractice case had to consider whether the lawyer was negligent in defending the accident case and whether the injured party was comparatively negligent.

A proposed special verdict form directing the jury to apportion negligence between the lawyer and the driver, and between the driver and the other driver, was rejected by the trial judge. Instead, a verdict form only apportioning liability between the lawyer and the driver was used. The Fifth District Court of Appeal held it was error not to use the special verdict form.⁷

In K.M.A. Associates, Inc. v. Meros,⁸ lawyers had entered into a real estate investment with their client. When the deal soured, a withdrawal agreement between the lawyers and the client was executed that contained a release from any obligations under the partnership agreement or "otherwise."⁹ In a later lawsuit alleging legal malpractice and seeking to impose a constructive trust, the lawyers raised estoppel and release defenses. The trial court severed the two issues and ordered the legal malpractice case to be tried to a...