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Ohio Supreme Court Confirms That Plaintiffs Must Prove The Underlying Case Would Have Been Successful
Post on September 1st, 2009

The Ohio Supreme Court resolved any questions with respect to whether or not its 2008 decision in Environmental Network Corp. v. Goodman Weiss Miller LLP, 119 O.S.3d 209, 2008-Ohio-3833, (hereinafter referred to as “ENC”) applied only to legal malpractice claims where a client complained about the settlement of the case giving rise to a malpractice claim. Some lawyers had attempted to limit ENC to such claims.

In Neighbors v. Ellis, 2008-Ohio-6105, the Supreme Court, without opinion, summarily reversed the Butler County Court of Appeals, where that court in turn had reversed the trial court’s dismissal of a legal malpractice claim on summary judgment. Neighbors involved allegations that the lawyer, or the office paralegal, had failed to give the plaintiff advice regarding the filing of a product liability claim. The defense was that the lawyer did not agree to represent the plaintiff. It appeared that the plaintiff had expert testimony supporting the concept that a product liability claim might have been successful, but for the failure by the plaintiff to timely bring his claim.

It is not entirely clear exactly what facts triggered the Supreme Court’s one-sentence reversal on the authority of the ENC case, but it is clear that Neighbors had nothing to do with any settlement of the underlying matter. One court, in applying both ENC and Neighbors in upholding a jury verdict in favor of the defendant lawyer, stated that although ENC was a “better result” claim, the Neighbors decision makes it clear that ENC also applies to “lost opportunity” claims as well, Young-Hatten et al. v. Taylor, 2009-Ohio-1185 (10th Dist.).

In most cases, in order to carry the burden of proof of legal malpractice, a plaintiff must prove that but for the alleged malpractice, the underlying case or matter would have been successful for the plaintiff.