Suit Within a Suit: Plaintiff's Only Option?
Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (2004)
Student Contributor: Melissa Goldberg
NJ Underlying Litigation (Personal Injury Action)
Facts: In this case, Plaintiff settled an underlying action involving a car crash and later alleged that her lawyer had negligently failed to include a responsible party in the underlying lawsuit. Plaintiff attempted to include this necessary, responsible party as a defendant in the underlying suit, but summary judgment was granted in favor of the new defendant under the statute of limitations. In the malpractice action, Plaintiff argued that failure to include the responsible party lessened her po-tential recovery. The attorney argued that (1) Plaintiff’s settlement barred any recovery in the mal-practice action; and (2) the value of her claim would have been no different with or without the new defendant. Plaintiff, however, proceeded to prove her case using expert testimony regarding the settlement and other evidence regarding her case. The defendant objected to the expert testimony and argued that the “suit within a suit” method, where Plaintiff presents evidence that would have been presented at trial in the underlying action had the malpractice not occurred, was the only way the Plaintiff should be allowed to prove her case.
Issue: Is the “suit within a suit” method the only way to prove proximate cause in a legal malpractice case based on underlying litigation?
Ruling: No.
The proper approach in trying a legal malpractice action will depend on the facts, the legal theories, the impediments to one or more modes of trial, and, where two or more approaches are legitimate, on Plaintiff’s preference.
Lesson: Alternative approaches to the “suit within a suit” method are permitted to prove the causation element in legal malpractice, so long as the jury is provided with an independent basis to determine the effect of the alleged malpractice and the value of plaintiff’s losses.
I think that it is beneficial to plaintiffs in a legal malpractice case that other methods besides the "suit within a suit" method are available to help the plaintiff prevail in proving proximate cause. I was wondering what other methods are available to the plaintiff?
The case from Ohio, Vahila v. Hall, 77 Ohio St.3d 421 (1997), which rejected the case within a case approach, favors a case-by-case analysis based primarily on whether the alleged negligence caused "damage or loss regardless of the fact that the plaintiffs may be unable to prove that they would have been successful in the underlying matter in question." Id. at 426. The court stated they couldn't endorse a blanket proposition that would require a plaintiff to prove, in every case, that he or she would have been successful in the underlying matter. "Such a requirement would be unjust, making any recovery virtually impossible for those who truly have a meritorious legal malpractice claim." Id. at 427.
Is the preferred method still the case within a case in most states? Or is the case-by-case analysis being used more frequently as the method for plaintiffs to prove proximate cause in legal malpractice because of the difficulties that case within case can have for a plaintiff?
I think the option of using a different method other than proving the "suit within a suit" is beneficial to the achievement of justice. Strict compliance with the "suit within a suit" method will not always be feasible depending on the facts of the case. This alternative would especially be helpful if the evidence that plaintiff needed to prove the case within the case had been lost as a result of the defendant attorney's negligence. It doesn't seem fair in that situation to restrict the plaintiff solely to the “suit within a suit” method as it would allow the defendant attorney to benefit from his or her own negligence.
I agree with the above comments. I agree with this decision that the "suit within a suit" should not be the only approach available to injured clients to prove their legal malpractice claim. Also it seems like the "suit within a suit" approach would be extremely lengthy because the Plaintiff would essentially be putting on a trial within the trial. There must be other ways that a Plaintiff can approach their case.
Alternatives to the suit within a suit approach are also important if evidence has been lost not just by the defendant attorney's misconduct but through other occurrences as well such as witnesses dying or becoming incompetent to testify or evidence being destroyed by water or fire given the time that passes before the malpractice trial begins. Replacing this evidence with expert evidence is especially fair to both sides because the expert has to be qualified.