The Rules Governing Actual Damages in Legal Malpractice
It is well understood that a cause of action for legal malpractice requires not merely proving the act or omission of the client’s former counsel but also establishing proximate cause often referred to as proving a “case within a case.” Proximate cause asks the question: absent the attorney’s negligence what should the result have been.
Since damages are not presumed in a legal malpractice case, plaintiff bears the burden of proving actual damages as a result of the attorney’s negligence. An attorney must first consider if there is a basis to proceed with a legal malpractice lawsuit. Also, the existence of the actual damages determines the type of proof necessary at trial and amount recoverable if successful.
The failure to investigate the existence of actual damages may result in the barring of the legal malpractice lawsuit due to the expiration of the statues of limitation or statue of repose.