Legal malpractice claims are typically viewed as difficult cases for a plaintiff to win because of the requirement that he or she prove “the case within the case.” This means that in addition to proving malpractice by the lawyer, a plaintiff must also prove the merits and damages of the underlying case or matter in which the lawyer represented him or her. Generally, a plaintiff has to show that, but for the alleged malpractice, he or she would have prevailed or fared better in the underlying case. Even when the plaintiff can show clear malpractice by the lawyer (for example, failing to file a claim within the statute of limitations period), he or she could still lose the legal malpractice claim if the plaintiff cannot also prove that the underlying claim would have succeeded were it timely filed.

The rule is applied slightly differently in every state and it is important to understand the distinctions between each variation of the rule. In Kentucky and Indiana, courts will generally require a plaintiff to prove he or she would have prevailed in the underlying case and obtained damages, in order to prevail on a legal malpractice action. See Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012); Flatow v. Ingralls, 932 N.E.2d 726, 727. In Ohio, a plaintiff will still be required to prove the merits of his or her underlying claim but the Ohio Supreme Court declined to adopt a hard and fast rule that the plaintiff completely prove the “case within the case” in order to prevail on a legal malpractice claim. See Vahila v. Hall (1997), 77 Ohio St. 3d 421, 428.

Despite the high bar of proof required for a legal malpractice plaintiff, there can be downsides for a defendant. (See “When Case-within-a-Case Method Helps Plaintiffs Prove Legal Malpractice,” Abrams, D., New York Legal Ethics Reporter, May 2015). Legal malpractice claims are usually litigated years after relevant facts to the underlying claim occur and, as we all know, witnesses disappear and memories fade. A plaintiff will probably have more personal knowledge of the facts of the underlying case (his own personal injury, for example) than the lawyer. And a lawyer defendant trying to disprove allegations from his former client will find himself playing catch up if he as the lawyer did not do his job discovering those facts in the first place.

On the other hand, if the lawyer’s negligence or neglect of the underlying case stemmed from the weaknesses of that case, it may actually benefit him in a subsequent legal malpractice claim. Id. For example, a lawyer agrees to represent a client on contingency in a personal injury action, realizes the case is not a good one, and then neglects the case/client because the lawyer does not want to put resources into a losing case. While this conduct by the lawyer is clearly unethical (and probably malpractice), the former client-turned-legal-malpractice-plaintiff will not be able to recover anything on the legal malpractice claim if the original claim was worth nothing in the first place.

That being said, a lawyer defendant will have to deal with his own prior statements about the value of the underlying case, which will likely be inconsistent with the way he wants to paint the underlying case in a malpractice claim. Usually, a lawyer’s statements about the merits of his client’s case would be privileged and inadmissible (either because of attorney/client privilege or because the statements fall under another Rule of Evidence, such as the rule prohibiting introduction of evidence relating to settlement discussions. See i.e., FRE 408.) However, those statements would probably be admissible in a subsequent malpractice action, since the former client will waive any confidentiality and a party’s own statements are generally always admissible, particularly for purposes of impeachment. Thus, a lawyer’s words may come back to haunt him when he tries to argue that his former client’s original case was worthless in an effort to prove lack of damages in a legal malpractice action.

In other forms of legal representation – negotiating business deals, for example – plaintiffs may have an easier time proving the “case within the case.” For example, in New York, a legal malpractice plaintiff who sues its former lawyers for failing to advise it of significant tax implications in a lease negotiation may prevail if it can show that, but for the legal malpractice, it would have obtained a better deal or declined to enter into the deal at all. See Leggiandro, Ltd. v. Winston & Strawn, LLP, 151 AD.3d 413 (NY App. 1st Division, June 1, 2017).

Regardless whether a malpractice claim arises from transactional matters or litigation, legal malpractice claims are expensive to both prosecute and defend. Some courts will bifurcate the cases, trying the underlying case to a conclusion first and then, if necessary, trying the malpractice action. See McMurty v. Wiseman, 237 F.R.D. 167 (W.D.Ky. Aug. 16, 2016). This could be beneficial for the defense in jurisdictions like Ohio or Indiana, where modified comparative fault applies to personal injury cases. In those states, if an attorney failed to file a complaint within the statute of limitations in an auto accident case but the underlying case resulted in the plaintiff being found more than 50% at fault for the accident, the lawyer would escape liability on the malpractice claim even though negligence was clear. In Kentucky, a pure comparative fault state, the plaintiff could recover even if he/she is 99% at fault, so the same scenario would not bar the plaintiff’s malpractice claim against her former lawyer (but it could reduce the damages which the plaintiff is entitled to recover from the lawyer on the malpractice claim).

Not only do the parties have to litigate two separate cases – the “case within the case” as well as the alleged malpractice – but most cases will require expert testimony as to the standard of care and breach components (i.e. the lawyer’s specific obligations to his former client and whether those obligations were met or breached). It is therefore imperative for lawyers (and their carriers) who find themselves facing such a claim retain counsel experienced in litigating and trying such cases.

With 14 offices across Ohio, Indiana, and Kentucky, Reminger attorneys are experienced in defending legal malpractice claims and asserting all applicable defenses, whether it be statute of limitations (the limitations period for filing a legal malpractice claim is one year in Ohio and Kentucky, and two years in Indiana), challenging the allegations of malpractice, or challenging the merits and damages in the “case within the case.” If you have any questions about defending legal malpractice claims in Indiana, Ohio, or Kentucky, do not hesitate to reach out to one of our Legal Professional Liability Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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