We continue our primer on the elements of legal malpractice. Understanding the elements of the negligence tort may help put into context loss prevention recommendations and malpractice avoidance tips. In the Winter edition, we discussed the first element: duty of care. The Spring Malpractice Alert discussed the second element of a legal malpractice tort: breach of duty. This quarter, we explore proximate causation of the damages.
Proximate Cause: The Unbroken Bridge
In a claim of professional malpractice, the plaintiff has the burden to demonstrate that the attorney’s error clearly and directly caused the claimed damages. “To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show […] that there is a causal connection between the conduct complained of and the resulting damage or loss.” Vahila v. Hall, 77 Ohio St.3d 421, (1997), syllabus. In other words, without the error, the outcome would have been better for the plaintiff.
More often than not, the plaintiff must prove the case-within-a-case. This doctrine requires the plaintiff to prove that they “would have been successful in the underlying matter.” Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833. Under this standard, plaintiffs have “the burden of proving by a preponderance of the evidence that but for [defendant’s] conduct, they would have received a more favorable outcome in the underlying matter.” Resor v. Dicke, 2023-Ohio-4087 (3rd Dist., 2023), citing Environmental Network Corp.
Maintaining the causal connection between the attorney’s error and the damages sought requires the plaintiff to demonstrate an unbroken path to actual, recoverable economic harm. Economic harm is not strictly limited to lost damages in an underlying case.
In Krahn v. Kinney, 43 Ohio St.3d 103 (1989), the plaintiff was able to recover damages for additional attorney fees needed to repair harm caused by her first attorney. A client who owned a bar hired an attorney to defend her on misdemeanor gambling charges. The attorney made multiple errors including failing to attend an administrative hearing which resulted in a penalty double the customary consequence. In a subsequent malpractice action against the first lawyer, the plaintiff successfully demonstrated that the attorney’s failures required her to incur additional costs to remediate the harm he caused.
Conversely, in Passerell v. Cordell, 2015 Ohio 1767 (11th Dist. 2015), the plaintiffs failed to connect the alleged errors to the harm. Without resolving a conflict of interest arising from duties to a former client, the attorney represented two brothers following his representation of their family’s closely-held business. The brothers later sued the lawyer for malpractice, alleging that negligent representation contributed to an adverse outcome and additional legal fees. The 11th District Court of Appeals affirmed summary judgment in favor of the attorney. Critiquing the plaintiffs’ failure to produce expert witness testimony on the breach of the standard of care, the merits of the underlying case, and the purported proximate cause, the appellate court held:
Under the particular circumstances of this case, in order to establish a causal connection between the conduct of the Defendants and the Plaintiffs’ claimed damage or loss, the Plaintiffs must present evidence related to two points. First, that if Cordell had attended the hearing, the judge would not have granted the restraining order. Second, if the judge had not granted the restraining order, the Plaintiffs would have had a better outcome in the case – that is, would not have incurred the claimed damage or loss. Id. at ¶34.
The Court, however, would not hold that an expert is required to establish proximate cause in all cases. Various appellate districts have split on whether expert testimony is needed to establish proximate cause.
After demonstrating that the case would have been successful but for the attorney’s error, the plaintiff must then prove that the damages sought would have been actually awarded AND recovered. Damages themselves must be quantified and proven.
General principals of damages in legal malpractice cases include:
1. The plaintiff’s claim for damages may not be unreasonably speculative or sufficiently certain. Speculative and uncertain damages can support a ruling for summary judgment.
2. Damages must be actual harm due to lost claims or judgments that the plaintiff would have won if not for the attorney’s negligence as well as additional legal fees incurred to rectify the attorney’s malpractice.
3. The plaintiff has a duty to mitigate damages, and if presented with an opportunity to mitigate, the plaintiff’s failure to do so can reduce the amount of recoverable damages.
4. Claims for prejudgment interest, compensating for the delay in receipt of the award, are typically closely scrutinized. Courts have often rejected these claims.
5. The plaintiff also must demonstrate that the damages sought would have been collected. See Paterek v. Petersen & Ibold, 2008-Ohio-2790. (“In proving what was lost, the plaintiff must show what would have been gained.” At ¶37.)
For more on this element, see David J. Oberly’s article, “Malpractice? Prove it!” published in the May/June 2016 edition of the OSBA’s Ohio Lawyer. See also, “Practice Pointers for Experts in Legal Malpractice Cases” by Joseph Borchelt, which appeared in the Legal Professional Liability Newsletter, 1st Quarter 2018.
Stay tuned for Navigating Legal Malpractice – Statute of Limitations and Statute of Repose in our next quarterly edition of Malpractice Alert!
