The following article appeared in the "California Lawyer."

Is It Really Legal Malpractice?

A legal malpractice lawsuit must be based on negligently performed legal services in an underlying claim or other legal matter. Obviously, in litigation not every bad outcome is the result of negligence, and even a negligent act might not cause sufficient harm to support a viable legal malpractice suit. For every lawyer confronted with the possibility of having committed malpractice, and for the lawyers who will defend or pursue the lawsuit, a thorough examination of the underlying case is imperative. This article discusses the criteria for determining whether there is a meritorious malpractice case.

To establish a cause of action for professional negligence, the plaintiff must prove that a breach of the duty of care resulted in injury and actual loss. Nominal damages, speculative harm, or the threat of possible future harm are insufficient to establish a cause of action for malpractice. Alhino v Starr (1980) 112 CA3d 158, 176. Damages are generally not recoverable for emotional distress caused by malpractice. Camenisch v Superior Court (1996) 44 CA4th 1689. Although a legal malpractice action may be based on a lawyer's negligent failure to provide an adequate defense, this article will focus only on claims that an underlying-or prior-plaintiff's case was lost because of malpractice. To recover damages in such a legal malpractice action, the plaintiff must prove negligent investigation, advice, or conduct of the client's meritorious case and that the underlying case would have resulted in a collectible judgment in the plaintiff's favor. Campbell v Magana (1960) 184 CA2d 751.

Meritless claims can arise when a lawyer incorrectly assumes that (1) the underlying case had merit, (2) the malpractice caused the client to lose all rights, or (3) the statute of limitations expired because of the passage of one year.

Was There Negligence?
A lawyer has an obligation to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise under similar circumstances. Kirsch v Duryea (1978) 21 C3d 303, 308. To fall below that standard of care is negligence. Budd v Nixen (1971) 6 C3d 195. In giving advice, an attorney will not be held liable for failing to anticipate how a debatable point of law will be resolved, as long as the advice given was based on an intelligent assessment of the problem after reasonable research was performed. Smith v Lewis (1975) 13 C3d 349, overruled on other grounds 15 C3d 838, 851.

An attorney's exercise of judgment is not negligence unless the judgment falls below the standard of care. For example, during trial it is generally accepted that the choice of what witnesses to call, what evidence to introduce, and whether or not to cross-examine a witness are exercises of judgment. Nevertheless, if a tactical decision was foolish, ill-considered, or unduly risky, it may be found negligent if the attorney's strategy was not based on informed judgment. Mallen & Smith, 4 Legal Malpractice ß 30.39 (West, 5th ed 2000). As the court stated bluntly in Smith v Lewis, "There is nothing strategic or tactical about ignorance." 13 C3d at 359.

Did the Underlying Case Have Merit?
After it is proven that the prior lawyer was negligent, there must be a trial (or retrial) of the underlying case. This is called "a trial within a trial." United Community Church v Garcin (1991) 231 CA3d 327, 334. A negligent attorney's previous advocacy of the client's cause is not evidence of its merit and does not stop the attorney from arguing its lack of merit as a defense in a legal malpractice action. Loube v Loube (1998) 64 CA4th 421, 428. A legal malpractice case will be unsuccessful if it cannot be proved that the underlying case had merit or that the result would have been different. The crucial casusation inquiry is what would have happened if the lawyer had not been negligent. Viner v Sweet (2003) 30 C4th 1232, 1242. It is also not enough that the prior lawyer was negligent; his or her error must have caused damage. Budd v Nixen, 6 C3d at 200. A legal malpractice case is viable only if there is underlying causation. That is to say, "no harm, no foul." Thus, the former client must establish that but for the attorney's negligence, a more favorable judgment would have been attained. Viner, 30 C4th at 1241.

Evaluation of the underlying case where the former lawyer has been negligent is no different from evaluation of any case: If there is no harm, the negligence is irrelevant. For example, if no one were hurt in a car accident, no lawsuit for personal injuries would be justified. Similarly, a medical malpractice case cannot be based on a claim: "If I had taken the pills that the doctor negligently prescribed, I would have died." In both of these situations a lawyer's negligence would not turn the underlying case into a winner. And if the underlying case had no merit, there is no basis for a legal malpractice case.

Would a Judgment Have Been Collectible?
Collectibility of the lost potential judgment in the underlying case also must be proven. Even if there were admitted negligence in the underlying case that would have resulted in a jury verdict for $1 million, no cause of action for legal malpractice can be established if it would have been uncollectible. For example, a lawyer's negligence resulting in the loss of the plaintiff's right to sue an insolvent, uninsured, and unemployed driver would not cause the plaintiff any damage, since no money would have been collected from the negligent driver, even if the case had been prosecuted to judgment.

Proving collectibility can sometimes be a challenge, and that factor must also be taken into consideration in representing a plaintiff in a legal malpractice case. If the former defendant had liability insurance, the policy can be obtained as evidence. In noninsurance litigation, however, proving personal worth may pose many problems. For example, can the former defendant, who is not a party to the malpractice case, be compelled to testify and produce documents relating to income, savings, and investments? The challenge, therefore, will be to determine whether proof can be adduced from other means. If collectibility cannot be proven, the legal malpractice case will fail. DiPalma v Seldman (1994) 27 CA4th 1499, 1509.

If a Remedy Was Lost, Were Alternative Remedies Available?
If a lawyer's error has caused the loss of a remedy for a client, the lawyer must determine whether there is an alternate remedy that can be pursued. If such a remedy existed but was not considered, the original lawyer compounded the error. A second lawyer who files a legal malpractice case without considering whether an alternate remedy still exists in the underlying case may be committing malpractice at that moment! There are many examples of alternate remedies. A federal claim may be available in a case that is time-barred in state court. A product liability claim that has not been timely filed in California might be filed against an out-of-state manufacturer in federal court, using a longer statute of limitations in the other state. A negligence cause of action might have been lost, but there still may be a claim for fraud or breach of contract.

If a client's rights can still be asserted, then the attorney's error caused no harm. The attorney must make sure that there are no other remedies or forums available to the client.

Did the Statute of Limitations Really Expire?
A case involving the failure of an attorney to file a case before the expiration of the statute of limitations is sometimes called a "blown statute case." A blown statute would seemingly result in a slam-dunk legal malpractice case, assuming that the underlying case was otherwise meritorious. See Harris v Smith (1984) 157 CA3d 100 (holding that the underlying case was not meritorious). However, there are many instances when the statute of limitations is tolled or extended.

If a client presents a case that is based on the first attorney's failure to file a complaint before the statute of limitations expired, the second attorney should make sure that it has, in fact, expired. If the subsequent attorney files a legal malpractice case, unaware that the statute has not expired, he or she -- and not the previous attorney -- will have caused the harm when the statute expires while the matter is under his or her control. The following examples illustrate how the usual statute of limitations can be altered.

Out-of-state travel: Code of Civil Procedure section 351 provides that for every day a defendant is absent from the state, the statute of limitations is tolled. There are a few exceptions to this statute. It does not apply, for example, to defendants engaging in interstate commerce. See Abramson v Brownstein (1990) 897 F2d 389 (holding CCP ß351 unconstitutional as to out-of-state residents involved in interstate commerce); Mounts v Uyeda (1991) 227 CA3d 111 (CCP ß351 applicable to nonresidents not engaged in interstate commerce). Nor does the statute apply to licensed California in automobile accident cases. Veh C ß17463. However, even in an automobile case, the statute may be tolled if the plaintiff proves that reasonable efforts to locate a defendant were unsuccessful. Dovie v Hibler (1967) 254 CA2d 673.

In O'Laskey v Sortino (1990) 224 CA3d 241, an enterprising investigator telephoned the potential defendant and announced that he was calling from a game show. Responding to a question, the defendant admitted that she had been out of the state for two weeks during the previous year.

Bankruptcy filing: The filing of a petition with the bankruptcy court operates as an automatic stay of the commencement of a judicial action against the debtor, and the statute of limitations is suspended under Code of Civil Procedure section 356 (tolling when commencement of action is stayed by injunction or statute). Thus the period between the filing of the bankruptcy petition and the cessation of the stay is added to the applicable statute of limitations period.

Other possible forums: An attorney should ascertain whether the client with the possible legal malpractice case can file the underlying action somewhere else. Many states have statutes of limitation longer than those in California. For example, in Ferens v John Deere Co. (1990) 494 US 516, the plaintiff lost a hand that allegedly was caught in a harvester. The injury occurred in Pennsylvania, which had a two-year statute of limitations. However, there was a six-year statute of limitations in Mississippi, where the defendant corporation did business. More than two years after the injury, the plaintiff filed his tort claim lawsuit in federal court in Mississippi and then moved to transfer the case to Pennsylvania, where he had filed suit on contract and warranty claims. The U.S. Supreme Court allowed the procedure on the grounds that no alternative rule would be more acceptable.

Partial payment by insurance company: Insurance Code section 11583 provides that if an insurance company has made partial payment on a personal injury case without notifying the injured person of the statute of limitations, and the person is not represented by an attorney, the statute is tolled as to the insured defendant from the time of the partial payment until the notice is given.

Incorrect legal remedy or forum pursued by plaintiff's lawyer: The limitations period is tolled when an injured person has several legal remedies and, reasonably and in good faith, pursues one. Myers v County of Orange (1970) 6 CA3d 626, 634. In Elkins v Derby (1974) 12 C3d 410, the Workers' Compensation Appeals Board dismissed a workers compensation action because the injured worker was found not to have been an employee. His subsequent personal injury action in superior court was permitted because the defendant was not prejudiced by the delay. The same rationale also applies when a plaintiff initially files an action in federal court that is dismissed without prejudice for lack of jurisdiction and the plaintiff later files in state court on the same claim. Addison v State (1978) 21 C3d 313.

Equitable tolling: "Courts may construe implicit exceptions where purely technical application of procedural rules would result in manifest injustice." Elkins v Derby, 12 C3d at 420 fn 9. This principle follows the so-called equity-based decisional rule of tolling. Bollinger v National Fire Ins. Co. (1944) 25 C2d 399. This concept was applied in an unusual case in which the plaintiff's attorney, who was on his way to the courthouse to try a case, was hit by a car and seriously injured. While he was incapacitated the statute of limitations expired on another of his cases. But the statute of limitations was tolled under Civil Code section 3531: "The law never requires impossibilities." Lewis v Superior Court (1985) 175 CA3d 366, 380.

State Bar taking over attorney's practice: If a plaintiff has not yet filed suit and was represented by an attorney whose practice was taken over by the State Bar, Code of Civil Procedure section 353.1 extends the applicable statute of limitations by six months from the entry of the order assuming jurisdiction of the attorney's practice, as long as the statute of limitations had not passed when the order was made.

Mental disability of plaintiff: The statute of limitations does not run against a person who is insane. CCP ß352(a). This exception may include other kinds of mental disabilities. In Feeley v Southern Pacific Transportation Co. (1991) 234 CA3d 649, the plaintiff was in a coma for twelve days after being knocked unconscious while on the defendant's premises. His suit, filed one year and one day after the attack, was timely because the statute was tolled while he was unconscious.

Death of a party: If a potential plaintiff dies before the expiration of the statute of limitations and the cause of action survives, an action may be commenced within six months after the date of death, or the limitations period that would otherwise apply, whichever is later. CCP ß366.1. If a potential defendant dies before the applicable limitations period expires, and the cause of action survives, an action must be commenced within one year after the date of death, and the normal limitations period does not apply, subject to some exceptions. CCP ß366.2.

Action for damages against felon: Suppose a claimant's spouse is killed by a driver later charged with felony drunk driving. The victim of a felon may bring suit within one year of the conviction. If judgment is stayed, the tolling remains in effect until the stay is lifted. A stay does not include the time during appeal or probation. CCP ß340.3.

Injured employee does not file timely action but employer does: An injured employee has one year to sue a third-party tortfeasor. However, Labor Code section 3853 provides that when an action is brought against a third party by either the employer or the insurance carrier for benefits paid to the employee, the employee may, at any time before trial on the facts, join as a party plaintiff, even if more than one year has passed from the date of the injury. Jordan v Superior Court (1981) 116 CA3d 202.

Conclusion
An attorney evaluating a potential legal malpractice claim must entertain the possibility that the previous attorney accepted a meritless underlying case and inflated the client's expectations without first performing an adequate investigation, or may have incorrectly given advice that the client's rights were lost. A prompt and complete analysis of the underlying case must be made to determine whether the plaintiff still has some viable rights in that case or whether the underlying case lacked merit or had no significant collectible damages.

© John P. Blumberg, 1997-2004

Article updated: February 2004

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