Before it became fashionable to sue lawyers, the proximate cause element of an action for legal malpractice required the plaintiff to prove the “suit within a suit.” That burden persists to this day, even in the modern world of civil litigation. In other words, the plaintiff has had to prove that if his or her attorney were not negligent in handling a litigated case (not a transactional matter), then the plaintiff would have prevailed in the underlying trial.
As the body of jurisprudence in the area of the law governing lawyers has expanded, it has become evident that the suit-within-a-suit paradigm of proof has become antiquated, and perhaps even irrelevant. In contemporary civil litigation, the suit within a suit has become a procedural and evidentiary morass during discovery and trial that frequently leads to bizarre and unjust results. In the overwhelming number of legal malpractice cases arising from litigation, such as “botched settlement” cases, the time has come to scrap the suit-within-a-suit scheme for a more practical and efficient approach that will not hamper the resolution of legal malpractice cases before trial. A new paradigm is needed if for no other reason than to hasten settlements and to thereby reduce the cost of litigation for both plaintiffs and defendants.
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