CHAPTER 12 - 12-2 DAMAGES FOR PROFESSIONAL NEGLIGENCE

• Jurisdiction: United States

12-2 Damages for Professional Negligence

The damages that can be awarded to a plaintiff who proves professional negligence include compensatory damages. If the negligence at issue is the loss of a legal action for which money damages had been sought, then the losing plaintiff can recover the value of that underlying action, including whatever legal fees were incurred in prosecuting the underlying claim. If the negligence of the attorney caused the loss of the plaintiff's business, then plaintiff's former business owner can recover for that loss, so long as the damages are not speculative.

In Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin,³ the plaintiff recovered damages for the lost profits of its business that was destroyed because of the defendant's advice about starting up the business. The Supreme Court determined on appeal that such damages for lost profits were speculative, and reversed.

Damages for professional negligence, like all other damages, must be certain. The court in Beverly Hills Concepts said, with regard to the "quantum of proof" needed to prove damages generally, that "[o]ne to whom another has tortiously caused harm is entitled to compensatory damages for the harm if, but only if, he establishes by proof the extent of the harm and the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit."⁴ But certainty is not as to the amount. "The rule which proscribes the recovery of uncertain and speculative damages applies where the fact of damages is uncertain, not where the amount is uncertain."⁵

Although the plaintiff in Beverly Hills Concepts used expert testimony on the issue of damages, expert testimony is not required to prove damages in a legal malpractice action. Expert testimony, however, may be needed on the causation of such damages. It is unclear whether that includes the issue of the collectibility of the damages.

If the negligence of the attorney causes a personal injury client to lose his case, or to be deprived of the right to bring an action, then his recovery, if he prevails in the malpractice case, is the value of underlying case, so long as he proves that he would have prevailed in the underlying case. In Gurski v. Rosenblum,⁶ there was a less common sort of recovery in a personal injury case, where the defendant doctor was awarded a judgment that included an amount of a default judgment entered against him for what he says was the negligence of his attorney in defending his medical malpractice case. The jury added to that amount prejudgment interest but reduced the verdict by the estimated costs which the plaintiff, being an uninsured defendant, would have incurred in defending the medical malpractice case. The jury further reduced the damages by plaintiff's comparative negligence which was determined to be 10 percent.

12-2:1 Attorney's Fees

Generally, a plaintiff is not entitled to attorney's...