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Legal Malpractice And A Trial Within A Trial

On Behalf of | May 9, 2016 | Litigation

In a legal malpractice action the client must demonstrate there was an attorney/client relationship, the attorney breached their duty of care, and the attorney’s breach of care was the cause of the client’s harm.

The third element, known as proximate causation, requires the client to demonstrate what result should have occurred if the lawyer had not been negligent. In the recent New Hampshire Supreme Court of Yager v. Clauson, the Supreme Court adopted a method to prove causation in a legal malpractice case called a “trial within a trial.”  In a trial within a trial, the jury is called to do double duty.  First, they must determine what would have happened in the underlying case had the lawyer presented the evidence or made the argument that the client believes the attorney failed to do. Then the trier of fact must determine whether the outcome of the case would have been different if the argument or evidence that should have been presented was in fact not presented.

In the Yager case, the client argued that his attorney failed to file a lawsuit within the statute of limitations. The trial court dismissed the client’s claim in part because the client had failed to identify an expert witness. The Supreme Court reversed and held that the client might prevail if he could demonstrate that he would have won the underlying action if the suit had been timely filed, and then demonstrate that the lawyer’s failure to file suit prior to the expiration of the statute of limitation was negligent.

The trial within a trial method can be very time consuming for legal malpractice plaintiffs because they essentially have to try two cases at once. In trying the underlying case, they have to be certain they have retained the appropriate experts and gathered the appropriate evidence to show that they could have prevailed in the underlying case.  If they cannot prove they would have successful in the underlying lawsuit, their legal malpractice claim will most likely be dismissed.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A.  Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].