The Case Within a Case

As someone who handles legal malpractice cases for both plaintiffs and lawyer defendants, David Paul Horowitz receives a lot of calls about alleged attorney negligence. One of the most common complaints is from someone who’s unhappy at the conclusion of divorce proceedings. 

“They’re angry at their attorney. They’re angry with the results,” says Horowitz, of Law Offices of David Paul Horowitz. But being upset about a result, he adds, doesn’t mean you’re a victim of malpractice.

“An attorney can do a fabulous job and lose a case,” Horowitz continues. “You could have three cases in which the facts sound similar, but the witnesses are different, the experts are different, the proof is different, and all those factors contribute to whether the underlying case is successful or not.”

This means legal malpractice attorneys like Horowitz have to be scrupulous. “Not because I avoid family law or anything like that, but because with the emotions involved in those cases, clients often feel personally aggrieved even if conduct of the lawyer isn’t cause of the damage that they suffer. But with a meritorious case, I wouldn’t hesitate.”

So what constitutes a meritorious case of legal malpractice, and how does someone go about proving their lawyer caused real damage?

Indicators That You Have a Case

“The problem with the legal malpractice cases is you’ve got to prove two cases,” says Dan Abrams, of Law Office of Daniel L. Abrams in Manhattan. “You have to prove that the lawyer was negligent, and then you have to prove that the underlying litigation or transaction would have had a different result.”

For the first part, malpractice attorneys have to determine if something a lawyer did, or didn’t do, ruined the client’s chances in the underlying case. Proving the original attorney departed from good and accepted legal practice often requires expert testimony. “But if someone calls and says, ‘My lawyer blew a statute of limitations,’ the negligence is more or less established,” Abrams says.

Horowitz gives an example: “You have three years to commence an automobile accident case. You hire an attorney, and maybe the attorney decides he doesn’t want to bring the lawsuit and instead is going to try to settle. Then they sit on it for three years and a day.”

But even if you have clear proof of a blown deadline and negligence, that still doesn’t mean you’ll have a solid malpractice case. “Because the other thing you have to establish is that the departure [from good and accepted legal practice] actually caused harm, which usually involves proving that the underlying case was in fact a meritorious one,” Horowitz adds. “We refer to it as proving the case within the case.”

So how do you go about doing that? “The same way you would have proven the underlying case to begin with,” Abrams says. “You have to go back and look at the evidence. Sometimes it’s readily available, and sometimes not.”

The Passage of Time

The time between when the underlying case happens and when the malpractice attorney looks at it can present problems, as well.

“Witnesses’ recollections may not be clear, documents may not be available, a vehicle involved in a crash may have been totaled. There are many ways in which the passage of time impacts an attorney’s ability to bring any kind of case,” Horowitz says. “It’s possible the attorney who handled the case has a wonderful file, and it’s current, but that’s not always the case.”

Making matters worse is the statute of limitations for attorney malpractice. In New York, it’s three years from the date the malpractice occurs. “But there’s something called the continuous representation toll,” Horowitz adds. “So if that attorney continues to work for you on that same matter, then until that representation ends, the statute is tolled.”

If a malpractice victim meets that statute of limitations, even if their underlying case may be dead because of lost time, a malpractice suit can make up for it. If the attorney proves both cases, Horowitz says, “the value of the original, underlying case is the result—that’s the damage.”

Finding Someone New to Represent You

Because of the variables involved, it’s hard to know if you have a good case or not—let alone two good cases. 

“You want someone with knowledge in the area. You want somebody you feel like you’re a good fit with. And, obviously, you want someone with experience,” Horowitz says. “By definition, somebody coming to me has already had a terrible experience with a lawyer. It makes for a different type of relationship in which reassurance is critical. What I do is express my sympathy that they were poorly served, and that I understand how it makes you leery of the legal system. But I hope they’ll give me a chance to show you don’t have to have those concerns with me.”