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, the answer is obvious. A claim for breach of contract seeking restitution instead of damages may be the best alternative for an individual whose counsel failed to perform according to the agreement but the case-within-a-case lacks sufficient proof.

However, availing the client of every possible cause of action may appear immature and desperate. Moreover, the often pro per complaint alleging Constitutional violations, assault, malice, tortious conduct, breach of contract, violations of public policy, injunctions, declaratory relief, equitable estoppel, etc., is rarely taken seriously and is usually disposed of during the pleading contests. 

The elegance of choosing the alternative causes of action require trimming the fat while maintaining a diligent, zealous advocacy of rights. Especially, when on the one hand an element of negligence is missing but the elements of the alternative cause of action are all present and provable.

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