4.02.04. Causation

The next element in a legal malpractice claim is causation.  The plaintiff must establish that the lawyer’s actions caused the plaintiff’s damages.  This is a difficult element for the plaintiff to prove.  Causation is established through what is called the “suit within a suit” requirement.  Here is how the Restatement (Third), The Law Governing Lawyers describes this requirement: “All the issues that would have been litigated in the previous action are litigated between the plaintiff and the plaintiff’s former lawyer, with the [former lawyer] taking the place and bearing the burdens that properly would have fallen on the defendant in the original action.”[1]  This puts the parties in a strange and ironic position. 

Katie Client meets with Alex Attorney about a potential breach of contract claim against Debbie Defendant.  After hearing Client’s story, Attorney tells her: “This is a great case!  Based on what you told me, I believe we can recover from Defendant.”  They then enter into an agreement for Attorney to represent Client in the matter.  After Client leaves, Attorney forgets about the case and allows the statute of limitations to lapse.  If Client brought a malpractice claim against Attorney, what would she have to prove? 

First, Client would have to establish an attorney-client relationship.  The facts state that they entered into an agreement so this is satisfied.  Second, Client will have to establish the duty owed to her.  A lawyer has a duty to file a lawsuit before the statute of limitations runs.  Third, Client will have to establish breach.  Here, she could put on an expert to testify that a reasonable attorney handling this type of case would have filed suit before the expiration of the statute of limitations and Attorney failed to do so.[2]  Next, she would have to establish causation.  To do this, Client would have to establish that if the lawsuit had been filed in a timely manner, she would have recovered damages.  Notice the position that Attorney is in now.  He is in the position of arguing that she did not have a valid breach of contract claim (or that her damages are less than she is asserting) – on a claim that he initially accepted because it had merit.  Attorney will put forward the defenses that Defendant would have put forward if the case had been filed.  Therefore, Attorney is now attacking the very claim that he said was “great” when Client hired him and calling as witnesses the folks that he planned to sue.  It’s a strange world.

[1] Restatement (Third) The Law Governing Lawyers § 53, comment b.

[2] This is probably one of those rare circumstances where expert testimony would not be required.  A lay person does not need a lawyer to explain why failure to file a lawsuit before the statute of limitations passes breaches a lawyer’s duty to her client.