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Methods of Proving Malpractice

In legal malpractice cases, plaintiffs often use the "case-within-a-case" method to prove their claims. This theory requires a plaintiff to show they would have been successful in the underlying action if not for the attorney's negligence. For many years in New Jersey, courts viewed it as the sole method for proving legal malpractice. In Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (N.J. 2004), the court recognized that "case-within-a-case" is not the exclusive avenue for proving legal malpractice cases. It is one of several methods.

Karen Garcia was the plaintiff, who initially filed a civil suit arising from a 1992 multi-vehicle accident. After an initial accident, the negligence of the first drivers in leaving an unattended vehicle led to the accident involving Karen Garcia. In November 1993, Garcia retained the Kozlov law firm to draft a complaint against the other drivers. The complaint omitted one driver unintentionally. After drafting the complaint, the law firm was forced to refer the case due to an existing conflict of interest. Once the case was transferred, the other driver was added to the complaint, but the damage was done, as the statute of limitations had already run on claims against that driver. The plaintiff did eventually settle with the drivers but filed a legal malpractice action against Kozlov.

The legal malpractice case began in July 2000. When the case began, the primary evidence used by the plaintiff was the absence of one driver from the suit. Multiple people testified that by being forced to exclude one driver, the plaintiff lost much of her leverage in the personal injury action. This exclusion influenced the advice of new counsel to take the settlement offered, because without the other driver, the potential for a higher award was severely diminished. The trial court ruled in favor of the plaintiff.

The defendants challenged the first verdict on the basis that the suit within a suit method of trying a legal malpractice case was violated. The appeals division agreed with the defendants and reversed the decision. Reversal was based on the court's belief that deviation from the suit within a suit method was not welcome. They basically pigeonholed all legal malpractice claims, requiring suit within a suit to be presented.

The New Jersey Supreme Court heard the case on appeal, because they recognized a misinterpretation of law. As always discussed, legal malpractice is often better thought of as professional negligence. Thus, in a case such as this one, a client must establish that a defendant's negligence proximately caused the loss. In the Court's view, the most common way this was usually done was through the suit within a suit method. Under this method, the Court noted a plaintiff has the burden of proving that she would have recovered judgment in the action, the amount of that judgment, and the degree of collectability of that judgment.

While the above method is often used, the Court identified some adverse impact such a philosophy has. The rule ignores the possibility of settlement, it is often difficult to recreate a legal action, and time has a way of negatively impacting the approach. A suit within a suit is also unfair because it pits plaintiffs against the lawyer who originally prepared it, thus giving advantage to he who knows the strategy, i.e. the lawyer.

As a response to this criticism, the Court carved out another method of proving legal malpractice in Lieberman v. Employers Insurance of Wausau, 84 N.J. 325 (N.J. 1980). In that case a defendant doctor was forced to settle against his wishes by an attorney representing the insurance company. He then sued for malpractice as a plaintiff. The Court was careful in noting the difficulties in requiring a person to prove a suit within a suit in such a matter. Instead of proving an underlying case, a person could use strictly expert testimony as to what as a matter of reasonable probability would have transpired without the alleged malpractice. Lieberman was important because it granted discretion to trial judges to allow a malpractice case to be heard in any number of way, and for lawyers to present as they wish.

The Court then applied Lieberman to the facts of this case. It was clear that the plaintiff presented expert evidence to explain what standards original counsel deviated from. In addition to the expert, the referral attorney who advised in favor of settlement also testified to the facts of why he recommended a settlement to Garcia. Furthermore, the plaintiff herself testified concerning the facts of the case to enable the jury to determine a loss value from an independent basis. The case actually followed the "suit within a suit" method, however imperfect it was. The Court was quick to note the expert testimony was offered to buttress the existing case, not as a substitution for evidence. The Court then reversed the appellate court, deciding for Garcia.

This case presents some difficult questions that the Court did not clearly answer. There is never an explicit statement that expert testimony may in fact substitute for evidence, but there seems to be an implication that a legal malpractice case could proceed in that way. It is clear that the "suit within a suit" method is no longer the exclusive model to prove a legal malpractice case. While it may be something that makes sense in the context of proving a case, it seems like the Court would be receptive to other methods. As long as the plaintiff has the certification required to follow through with a malpractice issue, it seems an attorney has a choice. An attorney may follow the "suit within a suit" map that has been followed many times before or they may present evidence which shows why the attorney was responsible for the loss incurred by the plaintiff. If nothing else, the Court seems to indicate that legal malpractice cases are classic tort cases with a little extra being the expert opinion regarding deviations from standards of care.

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