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Damages in Attorney Malpractice: What Must A (Former) Client Prove?

Damages are a mandatory element of a legal malpractice action. If the plaintiff has not incurred demonstrable damages as a result of an attorney’s wrongful conduct, the malpractice claim cannot prevail. Although it seems unfair to some people, “mere” breach of a professional duty–without measurable damages–does not create a legal malpractice claim.

Nominal damages (meaning damages without significant measurable value), speculative damages, and the possibility of future damages which have not yet occurred are not considered “demonstrable damages” for purposes of attorney malpractice claims.

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1.  Proof of Economic Losses. The client can show damages by proving the attorney’s wrongful conduct directly resulted in economic loss to the client.

2. Proof of Lost Recovery (Litigation).* Here, the client must prove that the attorney’s malpractice (either in prosecuting a lawsuit or in defending it on the client’s behalf) resulted in a less favorable judgment or outcome than the client would have received if the lawyer had fulfilled his duty to the client.

*Note: In addition to proving that (s)he would have received a more favorable judgment, the client must also prove that (s)he could have collected that judgment from the relevant defendant. “Collectability” is an element of damages, and must be proven in order for the plaintiff in a legal malpractice action to prevail.

3. Proof of Damages (Transactional). In transactional matters, the client must prove the attorney’s wrongful conduct directly resulted in damages (generally economic, though opportunity costs may also support a malpractice action in proper circumstances).


Emotional Distress is Not (Normally) A Relevant Form of Damages. As a general rule, a lawyer’s negligent handling of a client’s case or issue does not support an award of damages for emotional distress. This means the client cannot prevail in a malpractice action by showing emotional damages. The damages needed to support an award for legal malpractice must fall into another category, such as economic damages, lost recovery, or other financially measurable forms.

However, claims for emotional distress are not completely barred from malpractice actions.

Courts may hold an attorney liable for measurable emotional distress damages where the attorney’s malpractice was intentional and/or affirmative and resulted in significant emotional distress. Such situations are not the norm, however, and definitely require evaluation by an experienced malpractice attorney.

Where the attorney’s negligence led directly to the client’s imprisonment (e.g., on a criminal matter), the client may also be able to claim damages for emotional distress, though emotional distress alone will not support the legal malpractice claim. Presumably, the client would need to prove that but for the attorney’s negligent (or willful) misconduct, the client would not have been convicted (and sentence to prison) or would have been convicted on a substantially lesser charge and/or for a significantly lighter sentence (e.g., probation and/or time served, rather than additional prison time).


If you believe an attorney’s wrongful conduct has damaged you, either in litigation or in a transactional matter, do not attempt to evaluate your damages on your own. Contact an experienced legal malpractice attorney promptly and schedule a consultation. Delay may compromise your rights, or even cause you to lose your right to sue.

Do not use this or any other article or online source as a substitute for consulting with an attorney. Only a licensed, experienced practitioner can help you evaluate your rights properly and help you determine whether or not you have a legal malpractice claim.



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