Why Alternative Theories Should be Alleged in Legal Malpractice Actions
The most notorious aspect of proving a legal malpractice action is case-within-a-case component. If a lawyer represents a party in a transaction and commits malpractice, the plaintiff-client must prove but for the transactional document prepared by his lawyer the plaintiff-client would not have suffered the harm. In the litigation setting, the plaintiff-client must prove that he would have won the underlying case and could have collected the judgment. ( See , Viner v. Sweet , 30 Cal. 4th 1232; CACI (2017 edition) No. 601. Damages for Negligent Handling of Legal Matter.) Do alternative theories of liability--intentional misrepresentation, constructive fraud, intentional infliction of emotional distress--bolster plaintiff's clients claims? The answer is as always, it depends. The factual circumstances of any given case will determine the available causes of action and remedies in any case. If the lawyer for instance assaulted or battered the plaintiff-client and missed a deadline,...