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Recoverable Damages in Legal Malpractice Actions


Plaintiffs who successfully bring a legal malpractice action against a lawyer may recover damages sufficient to “make the client whole,” or — in the words of California Civil Code Section 3333: “The amount which will compensate for all the detriment proximately caused [by the wrongful acts], whether it could have been anticipated or not.”


Generally speaking, compensatory damages in legal malpractice cases equal the difference between what the client actually recovered in the underlying matter or action (the one in which the lawyer’s wrongful act or omission occurred) and what the client would have recovered or received in the absence of the attorney’s malpractice. (While the plaintiff may also be entitled to other, consequential damages, based on the facts and circumstances of an individual case, compensatory damages are the type customarily awarded in malpractice actions.)


1. Economic Damages or Losses. Where the client actually loses money as a direct result of the attorney’s malpractice — for example, in the form of a judgment rendered against the client — the amount of the economic loss (e.g., the judgment – or at least the portion of the judgment directly attributable to the lawyer’s malpractice) may qualify as proper damages in the resulting legal malpractice action.

2. Attorney Fees Paid As a Result of Malpractice. Where a client (or former client) must subsequently bring or defend a legal action as a direct result of a lawyer’s malpractice, attorney fees paid to the new lawyer (the one the plaintiff was forced to hire as a result of the previous attorney’s negligence) are often recoverable as compensatory damages in a legal malpractice suit.

Note, however, that the attorney fees the plaintiff incurs in bringing the malpractice action itself are generally not recoverable as compensatory damages. Exceptions do exist, however. For example, if the negligent lawyer’s retainer or attorney fee agreement contains a clause permitting recovery of attorney fees in litigation relating to or arising from the fee agreement, malpractice litigation costs — including attorney fees — may be recoverable. Also, if the negligence action is brought as a contract action (on the fee agreement itself), and the plaintiff can prove (s)he paid more than the value of the legal services (s)he received, the client may be able to recover some portion of the attorney fees paid to the negligent lawyer.

However, these are specific claims which are not available in all legal malpractice cases. If you believe you have a claim against a negligent lawyer, consult an experienced legal malpractice attorney for an evaluation of the damages and claims that may be available to you personally, which will vary depending on the facts and circumstances of your individual case.

Another important point to note: the total compensatory damages award against a negligent lawyer cannot exceed the amount of the plaintiffs’ actual loss. Since the purpose of compensatory damages is to make the plaintiff “whole,” an award that exceeded actual damages incurred would result in an unintended windfall.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Malpractice (professional negligence) claims are complicated and fact-dependent. If you believe you have a claim against an attorney who represented you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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