In Maryland, to prevail on a legal malpractice claim, a former client must prove: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) loss to the client proximately caused by that neglect of duty.
In a lawyer-negligence or fiduciary-breach action brought by one who was the plaintiff in a former and unsuccessful civil action, the plaintiff usually seeks to recover as damages the damages that would have been recovered in the previous action or the additional amount that would have been recovered but for the defendant’s misconduct. To do so, the plaintiff must prove by a preponderance of the evidence that, but for the defendant lawyer’s misconduct, the plaintiff would have obtained a more favorable judgment in the previous action. The plaintiff must thus prevail in a “trial within a trial.”
The trial-within-a-trial doctrine is meant to expose what would have happened at trial, but for the attorney’s negligence. The trial-within-a-trial approach is not necessary to prove malpractice only when the plaintiff is damaged in a way other than receipt of a less favorable judgment. Therefore, the trial-within-a-trial doctrine is always applicable when a former client’s alleged injury is the loss of a favorable judgment caused by the former attorney’s alleged malpractice.
In a legal malpractice case arising from an allegedly botched medical malpractice claim that the Court of Special Appeals of Maryland (“Maryland Appellate Court”) decided in its November 3, 2021 unpublished opinion, the Maryland Appellate Court stated: “The trial-within-a-trial doctrine applies to Saunders’s legal malpractice claim against Appellees, and therefore, he was required to prove that the Assigned Claim was meritorious or that he would have succeeded at trial. Notably, for the Assigned Claim to be meritorious, Saunders would need to present expert testimony to demonstrate that Dr. Rowen committed medical malpractice, i.e., that she breached the applicable standard of care. Indeed, due to the complex nature of medical malpractice cases, “expert testimony is normally required to establish breach of standard of care and causation.””
The Maryland Appellate Court held: “The Assigned Claim against Dr. Rowen is founded on a theory of medical malpractice. Accordingly, Saunders was required to present expert testimony to establish both breach and causation. The Assigned Claim is an indemnification claim, and Saunders would be required to prove that Mercy was entitled indemnification from Dr. Rowen for the settlement of the underlying alleged medical malpractice. Because Saunders did not designate a medical malpractice expert for the Assigned Claim against Dr. Rowen, he cannot establish the essential elements of breach and causation for his medical malpractice claim … We, therefore, hold that because Saunders failed to designate a medical malpractice expert to demonstrate that the Assigned Claim was meritorious, he cannot – – as a matter of law – – prove the essential element of proximate cause in his legal malpractice claim against Appellees. As a result, because Saunders has failed to prove the essential element of proximate cause in his legal malpractice claim, the trial court did not err in granting summary judgment in favor of Appellees.”
Source Saunders v. Markey, No. 1439 September Term, 2020.
If you or a loved one may have been injured as a result of medical malpractice in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Maryland medical malpractice case, if appropriate.
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