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Damages in Legal Malpractice: What Can an Injured Client Recover?

Damages are a mandatory element of a successful legal malpractice claim. Stated another way: if the client doesn’t suffer measurable damages (of a type recognized by law) he or she cannot successfully sue the attorney for malpractice.

Although this seems strange to many people, the law says that if the lawyer’s breach of a duty causes only nominal or speculative harm, the client has no recognizable negligence action–and no recovery will be allowed.

This is yet another reason why it’s so important for clients considering a malpractice action to have qualified legal counsel and solid advice from the earliest possible time. The way the claim is framed, and pled, may impact the client’s ability to recover.

HOW DOES A CLIENT PROVE DAMAGES?

When the malpractice relates to litigation, the client must prove that he or she (the client) would have obtained a favorable judgment and that the judgment was collectable from the defendant. Both of these are mandatory elements. If the client can only prove that part of the judgment could have been collected, the damages award in the later malpractice action will include only the collectable portion.

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WHAT DAMAGES CAN A CLIENT RECOVER IN A MALPRACTICE ACTION?

The standard form of damages in a legal malpractice action is “consequential damages” — meaning all damages actually caused by or resulting from the attorney’s breach of duty. The goal of consequential (or compensatory) damages is to make the client “whole” by placing the client in the position he or she would have held had the attorney not committed malpractice.

Compensatory damages may include, or be measured by, the following:

1. The difference between what the client actually recovered and what the client would have recovered if the lawyer hadn’t committed malpractice.

2. The economic loss to the client resulting from the lawyer’s malpractice.

3.  Attorney few the client incurred as a direct result of the lawyer’s malpractice. However, this generally does not include either the attorney fees the plaintiff incurs in prosecuting the malpractice action itself or the legal fees the client paid to the negligent attorney. (There are exceptions to both of these rules, however.)

4. Punitive damages, but only where the lawyer who committed the malpractice was also guilty of fraud, oppression, or other actual, direct conduct justifying punitive damages. Malpractice alone does not generally justify an award of punitive damages.

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WHAT DAMAGES CAN A CLIENT NOT RECOVER IN A MALPRACTICE ACTION?

The following types of damages are generally unavailable to clients in malpractice actions.

1. Emotional distress resulting from the lawyer’s professional negligence. (Exception: where the distress naturally results from the type of malpractice committed and where the distress is not simply the consequence of the client’s lost money. Where the lawyer’s conduct was egregious enough to justify emotional distress, then these damages may be available too.)

2. Punitive Damages — but see above, for exceptions when these damages may be permitted.

3. Damages in excess of the client’s actual loss. Proof of damages–meaning actual, documentable losses–is a mandatory element of malpractice claims.

Be aware: there are exceptions to these rules, and clients should never assume that damages are–or are not–available (on the basis of this or any other article). Always consult an experienced malpractice litigator to learn whether your case falls within an exception where these normally disallowed damages ARE available.

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 Disclaimer: Damages in legal malpractice are a complicated topic, and articles like this one can only touch on the basic issues. The details of legal damages are far more complicated than this article can cover, and your rights and experiences may vary.  Never use an article (or any online source) to evaluate your legal claims. Always speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. 

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