B. Method of Determining Damages

• Library: South Carolina Damages Supplement (SCBar) (2017 Ed.)

B. Method of Determining Damages

1. Attorney Negligence in Prosecuting or Defending a Claim:

The Case-Within-A-Case Method

p. 502

Replace the first sentence of the first full paragraph on page 502 with the following text and footnotes:

While South Carolina courts have not provided decisive opinions on the method, several courts have referenced the use of "trial within a trial." In Brown v. Theo,^3.1 the South Carolina Supreme Court held that a plaintiff must prove that he most probably would have been successful in the underlying action if the attorney had not committed the alleged malpractice. This holding has been interpreted to be in accord with the requirement that the alleged act of negligence proximately causes damage and that in order to prove the probability of success of the underlying claim, the trial court must undergo, in essence, a trial within a trial.^3.2
A South Carolina federal court utilized the method, albeit in a default judgment context.^3.3 In Samuel, the plaintiff sued her lawyer for his negligence in her medical malpractice case. The lawyer never made an appearance, and the court entered default. At the hearing on the motion for default judgment, the plaintiff presented evidence of the damages she would have recovered in the medical malpractice case but for the lawyer's negligence, including testimony of the plaintiff and an affidavit of a physician that the doctors had been grossly negligent and proximately caused the injuries for which plaintiff had originally filed suit.
Other jurisdictions have addressed the issue. One California court...

^3.1 345 S.C. 626, 629, 550 S.E.2d 304, 306 (2001).
^3.2 Eadie v. Krause, 381 S.C. 55, 63, 671 S.E.2d 389, 392-93 (Ct. App. 2008).
^3.3 See Samuel v. Dickey, 2015 WL 1297953 (D.S.C. Mar. 23, 2015).

Replace footnote 4 with the following:

If a client appeals an adverse decision in the underlying suit, the statute of limitations for the legal malpractice claim that is predicated on the injury or damage caused by the lawyer's negligence in the underlying suit does not begin to run until resolution of the appeal. Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 787 S.E.2d 485 (2016) (overruling Epstein v. Brown, 363 S.C. 372, 610 S.E.2d 816, abrogating Holmes v. Haynsworth, Sinkler & Boyd, P.A., 408 S.C. 620, 760 S.E.2d 399, Kelly v. Logan, Jolley & Smith, L.L.P., 383 S.C. 626, 682 S.E.2d 1). p. 504

Correct footnote 16 with the following pinpoint cite:

935 A.2d 1236, 1248 (N.J. App. 2007).

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