The Trial Within a Trial: Malpractice Litigation

• Jurisdiction: United States,Federal
• Author: Written by Justin O'Connell, CFLS
• Publication year: 2022
• Citation: Vol. 44 No. 1

THE TRIAL WITHIN A TRIAL: MALPRACTICE LITIGATION

Written by Justin O'Connell, CFLS^*

Even where an attorney acts with utmost skill, a frustrated or unhappy client might target their attorney as a source of redress for their perceived economic harms. Family law clients often encounter adverse outcomes in litigation and frequently hold strong beliefs that they should have prevailed. They might believe they would have prevailed but for the judge getting it wrong, but for the other party lying, or but for their attorney making a mistake. This perception that external factors affected an otherwise meritorious case is the motivation for a client to seek relief after an adverse outcome. If the judge got it wrong, then appeal. If the other side lied, then move to set aside the ruling. If the client's attorney made a mistake, then sue for malpractice.

The procedural method of proving attorney malpractice is explored below. A litigator should be aware not only of the standards by which they should practice law, but also of the method by which attorney negligence is proven. Such awareness ensures a litigator is providing the level of service their client deserves while also protecting themself from subsequent claims. The below discussion addresses attorney malpractice claims that arise from adverse outcomes during litigation, whether from a court decision or from a settlement with which a client is unhappy.¹

The elements of a cause of action for negligent attorney malpractice are:

• the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess;
• a breach of that duty;
• a proximate causal connection between the breach and the resulting injury; and
• actual loss or damage.²

Discussing such elements might give rise to distant memories of a tort class in law school. However, the elements are alive and well and each must be proven to prevail on a malpractice claim.

THE TRIAL WITHIN A TRIAL

Proving attorney malpractice presents unusual problems due to the method of litigating this type of negligence claim. Conceptually, recovery depends on the outcome of a prior case that was allegedly tried improperly or never tried at all. The client must prove that only one alternative to the outcome of the prior case was possible, and the attorney's breach of a duty prevented that outcome. Thus, the client must prove that but for the attorney's breach, there would have been a favorable—or more favorable—result in the prior case. That hypothetical result is used as the basis to measure the client's damages.

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The method of trying attorney malpractice cases is referred to as the "trial within a trial", that term arising in caselaw and secondary sources over seventy years ago in observation of the then-established approach.³ This method is based on the notion that the best way to determine a client's damages from their attorney's alleged breach is to litigate the relevant issues from the prior case within the malpractice case against the attorney. The rationale for this method is straightforward; to know what a client lost because of an attorney's breach, the inquiry should be what would have happened had the prior case progressed without the attorney's alleged breach. For example, a client whose claim in the prior case is lost because the attorney failed to timely assert the claim must prove that if the attorney had timely acted, then the client would have obtained a favorable outcome. However, if the client's opposing party in the prior case had a valid defense, a better claim or better facts, the client will lose the malpractice action, because no loss resulting from the attorney's breach can be established with certainty. Without proving a favorable outcome in the prior case would have occurred, there is no injury, and without an injury, there is no liability.⁴

In the trial within a trial, the trier of fact sits as a replacement for the trier of fact who never heard the properly litigated prior case. In this replicated trial, relevant evidence that could have been admitted in the prior case is allowed and the attorney may assert claims and defenses that the opposing party in the prior case could have made. As one court has noted, despite criticism of this method, the trial within a trial is the "the most effective safeguard yet devised against speculative and conjectural claims in this era of ever-expanding litigation. It is a standard of proof designed to limit damages to those caused by a professional's malfeasance. Certainly to date, no other approach has been accepted by the courts."⁵

An ever-present issue is whether the amount and type of damages was recoverable in the prior action. Determining the type of damages available is an issue of law that can be resolved by the court. However, the client has the burden of proving the amount of damages. For example, assume a client alleges in the malpractice case that their attorney did not assert a claim for fees against the other party in the prior case (e.g., Family Code sections 271, 2030, et seq.), or that the claim was otherwise lost due to the attorney's breach. Then, in the...