Articles Posted in Damages

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In Paldino v. Johnson, 2023 Ohio 1947, Ohio Court of Appeals, 11th Appellate District 2023, the appellate court affirmed a legal malpractice verdict in favor of the plaintiff for a modest sum of money.

Plaintiff hired a lawyer to assist him in dividing a parcel of property he owned with a co-tenant. The court divided the property but because plaintiff failed to introduce evidence that he had paid the mortgage, the court awarded him less than he should have received. The amount plaintiff had paid towards the mortgage was $39,339.88. (Apparently the co-tenant had not paid any money toward the mortgage). Plaintiff sued his former lawyer for that amount and the trial court, after a trial, awarded him $39,339.88 in damages. The court entered judgment against the lawyer and the plaintiff appealed arguing that he was entitled to punitive damages.

The appellate court rejected the appeal and affirmed the judgment. There was no allegation of fraud. This was a simple oversight by the lawyer and punitive damages were not available. Illinois does not allow the recovery of punitive damages in legal malpractice cases.

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In Julio Chicas v. Christopher J. Cassar, et al, No. 2023 NY Slip Op 00202, Appellate Division of the Supreme Court of New York, Second Department, the plaintiff sued for malpractice claiming that the lawyer defendants failed to sue a tortfeasor. The case was dismissed at the trial level, but the plaintiff successfully appealed. The reasoning:

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060). The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged herein, inter alia, that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him (see id. at 1060). The defendants failed to do so. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Comment: the court is saying there may have been a possible recovery against the tortfeasor who was not pursued. This may or may not be true. The litigation is in its early stages and we cannot predict whether or not the plaintiff can prove this claim. (If the possible tortfeasor was bankrupt or insolvent, there is no possible recovery.).

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In every legal malpractice case, the plaintiff is required to hire an expert witness, a lawyer, to testify that the defendant breached the standard of care. This is also required in medical malpractice cases.  Experts cost money that will inevitably reduce any recovery. So when you think of filing a legal malpractice case, you need to be able to plausibly prove a significant amount of damages before the legal malpractice case becomes worth pursuing. Small cases, for $10,000 or $15,000, don’t work economically. Indeed, most clients would be worse off if such a case were actually filed because the legal fees and expert fees would exceed the recovery.

Ed Clinton, Jr.

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Generally, in Illinois, the successful plaintiff in a legal malpractice action can recover from the lawyer the same damages that he could recover in the underlying case. So, in a personal injury case, the plaintiff can recover (a) economic damages, such as medical bills and lost wages and (b) pain and suffering damages. If a lawyer causes the plaintiff to lose a valid claim, the plaintiff should be able to recover the same damages from the lawyer.  In Webster Bank v. Pierce & Associates, P.C., 16-cv2522, (2-19-2020) the district court held that a plaintiff bank can recover prejudgment interest in a legal malpractice claim against its former lawyer.

The underlying case was a collection action on a promissory note. The opinion does not describe the act of legal malpractice. The defendant law firm filed a motion in limine to bar the bank from seeking pre-judgment interest. The court denied the motion because the bank (had it been successful in the underlying case) could have obtained the same prejudgment interest.  The pertinent discussion follows:

Here, Webster alleges Pierce’s malpractice in a suit-on-note claim against Kristen Jasinski caused its damage. According to Webster, had Pierce been successful in the underlying suit-on-note claim, Webster would have been entitled to a judgment in the amount of the principle of the note plus interest from the date of Jasinski’s default to the date of judgment under the terms of Jasinski’s loan agreement or the Illinois Interest Act, 815 ILCS 205/2. (Dkt. 182, Ex. 1, p. 3) (finance charge calculated by applying the periodic interest rate to the Daily Balance of the loan); 815 ILCS 205/2 (“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any … promissory note … In the absence of an agreement between the creditor and debtor governing interest charges, upon 30 days’ written notice to the debtor, an assignee or agent of the creditor may charge and collect interest as provided in this Section on behalf of a creditor.”). Webster asserts that the

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There are a number of issues that you should consider before you file a legal malpractice claim against a lawyer. Your lawyer should discuss these issues with you so that you understand how to proceed:

  1. Did the lawyer cause your harm or was it caused by someone or something else? You are required to prove that the lawyer was the proximate cause of the loss of your case. Consider whether you would have won the case absent whatever error you believe the lawyer made. Play Devil’s Advocate – even if the lawyer had done what he was supposed to do, would I have won the case? Often the answer to this question is “No” because the case could not be won under any circumstances.
  2. Am I prepared to waive the attorney-client privilege? When you sue your lawyer you are almost always deemed to have waived the attorney-client privilege. That privilege shields communications from you to the lawyer and from the lawyer to you. It allow you to seek legal advice without fear that your own words will come back to haunt you. But if you sue a lawyer, you waive the privilege. Consider carefully whether the waiver of the privilege is worth it to you.
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An Ohio court has affirmed a verdict in favor of a legal malpractice plaintiff. By itself, that would not be worth discussing. However, the result of the case, a verdict of $1,192.12, was a clear disappointment for the plaintiff.

The underlying case was an auto accident in which the plaintiff suffered apparently minor injuries. He hired a lawyer to file a case. Unfortunately, the lawyer missed deadlines and voluntarily dismissed the case. The lawyer then missed the deadline to refile the case and the claim became time-barred.

There is no question that the lawyer made an error. During the legal malpractice trial, the lawyer conceded that he had been negligent but contested the issue of damages. The jury then awarded $1,192.12 in damages. In sum, a great deal of work was done to prove a legal malpractice claim but the jury decided that the damages were minor.

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