Legal Question in Civil Litigation in California

I have read that Legal Malpractice cases are a "Case within a Case", because the underlying case has to be re-litigated.,,,, So, in a Malpractice Action, a former client sue his former counsel, and that counsel retains their own counsel from their Insurance carrier, ,,,What about the defendants in the underlying case? Do the underlying defendants have to retain their own counsel to try to prove that they were innocent?,,,Is the cost of defending a Legal Malpractice action TWICE the cost of other typical litigations.?,,,legal experts always say that a typical litigation through trial cost about $20,000,,,,So, Does a Legal Malpractice litigation cost about $40,000 because it's 2 cases in 1 , meaning its twice the effort?

Asked on 5/13/14, 11:02 am

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I don't know what legal experts you have been talking to, but it would have to be a very simple case over a very small amount in dispute to litigate it through trial for $20,000. $50,000 would be the low end for a typical small to modest case. Six figures is the norm for a significant case.

To answer your specific question, however, it is not really accurate that the entire underlying case has to be re-litigated. The opposing party in the original case has no role in the malpractice case, other than perhaps as a witness. They presumably won the underlying case, or they would be the ones suing for malpractice. So that case is done.

What is meant by "re-litigating" the underlying case is that the plaintiff has to prove that if their attorney had not committed malpractice, they would have had a different outcome in the underlying case. How much extra work and expense that requires may vary greatly from case to case.

For example, if the plaintiff was a construction subcontractor who filed a mechanics lien when he wasn't paid, and his lawyer sued the general contractor for payment and the owner to foreclose the lien, but the lawyer blew the 90-day statute of limitations on the lien claim, the lien would be thrown out. If the case then went forward as to the general contractor and resulted in a judgment, but then the general went bankrupt. There would be virtually nothing to re-litigate. Had the lien been properly enforced, the plaintiff would have gotten his money, but instead he got nothing. The only issue would be whether it was the lawyer's malpractice or some other cause that resulted in the lien being lost.

Conversely, if an attorney blows the statute of limitations in a four-car auto accident where all the other drivers say the client caused the accident, but she denies it, and the client had an underlying condition that was made worse by the accident, but it is disputed by how much, and the client is self employed and her income has varied by 30% from year to year and now claims she can't work at all, but an expert says she can work half time . . . etc., she would, indeed have to litigate basically her entire case against the other drivers, liability and damages, to prove her attorney's malpractice caused her to lose a recovery she would otherwise have received.

Answered on 5/13/14, 11:40 am

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