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Understanding Damages in Legal Malpratice Cases (Part 1)


If the plaintiff cannot demonstrate that (s)he has actually suffered damage (as a result of the attorney’s breach of a legally recognized duty), the plaintiff cannot prevail, even if the attorney did actually breach a legally recognized duty to the plaintiff.

This is true of negligence claims generally – a plaintiff or claimant must be able to prove that he or she actually incurred damages–physical, mental, or economic–in order to recover damages against a negligent defendant.

The reasoning behind this rule makes sense in light of the underlying purpose and focus of courts and legal actions. Professional negligence/malpractice actions, like other civil actions, exist to prevent and redress harm that individuals suffer as a result of an attorney’s wrongful or inappropriate conduct. Although society does have an interest in ensuring attorneys behave properly–as it does in ensuring that everyone behaves in accordance with the law–the courts’ primary concern in civil cases is providing remedies for legal wrongs. To the extent possible, courts attempt to return an injured plaintiff to his or her pre-injury condition, by forcing the defendant to pay for the actual harm inflicted. Where the plaintiff suffered no physical, economic, or recognizable psychological damages (even if (s)he incurred stress, the law does not generally provide a remedy for stress alone), there is no “payment” require to return the plaintiff to pre-injury condition.

While people can debate the benefits of “litigating a principle” or forcing defendants to apologize for wrongful conduct, these are not the purpose of civil actions.



Plaintiffs cannot merely allege or claim that damages were suffered. The plaintiff must actually prove that he or she suffered actual, measurable damages as a result of the defendant’s malpractice.

Often, the plaintiff’s damages will take the form of money not recovered, as opposed to money actually lost. For example, the plaintiff may have lost a lawsuit, or received less favorable contract terms, than (s)he would have received if the defendant attorney had not engaged in negligent conduct. The plaintiff must prove these damages to a legally acceptable standard, which normally requires proving that, but for the attorney’s wrongful conduct, the plaintiff would have:

— prevailed in a lawsuit the plaintiff actually lost;

— received a higher judgment in a lawsuit the plaintiff won; and/or

— received better contract terms (or reached a contract on beneficial terms).

However, if the plaintiff claims that (s)he would have received more money, the plaintiff must also prove that those additional funds could have been collected or received.

By way of example: it doesn’t matter if a plaintiff can prove that (s)he would have received a higher damages award against a defendant who could not afford to pay even the amount of damages actually awarded.

“Collectability” is thus a mandatory element of the plaintiff’s prima facie case for damages.



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. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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