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The not insurmountable hurdles to proving lawyer malpractice


If you sue and don’t win, can you make your lawyer pay? You’ll have to overcome some obstacles.

Becky was a passenger in a car driven by her friend Kelley, when Kelley’s car collided with a car driven by Denise. Becky was injured, and she hired the firm Aaron Wm. Sachs & Associates, P. C., which is well-known in much of Missouri for its television and yellow page advertising.

Becky and her husband sued Kelly and Denise and Denise’s employer. The jury ruled that the accident was entirely the fault of Kelley and awarded Becky damages of $156,000 against Kelley. Denise and her employee were not liable at all. Kelley’s insurance company settled the $156,000 judgment against Kelley, paying Becky $96,927 (policy limits). They appealed the jury verdict against Denise and her employer and were unsuccessful.

Next, Becky and her husband sued their lawyers, alleging “gross and wanton negligence” for the suit against Denise. They also alleged that Sachs failed to properly pursue the loss of consortium claim on behalf of Becky’s husband. According to the suit, Sachs and his associate attorney Sokol failed to prepare Becky and her husband for their trial testimony, failed to properly show that Becky’s medical bills were necessary and reasonable, failed to present important testimony from Becky’s doctors, failed to produce a liability expert with regard to the auto collision, failed to introduce character evidence, failed to present evidence of loss of future income and past earnings, etc.

The attorneys defending the attorneys argued in a motion for summary judgment that Becky had no case, because attorneys cannot guarantee their results. Making good-faith errors in judgment and following a trial strategy that doesn’t work isn’t malpractice, unless the plaintiff can show that the attorney “failed to exercise that degree of skill and diligence ordinarily used under the same or similar circumstances by members of the legal profession.” Even that’s not enough. To recover damages, the plaintiff has to show that “but for” the attorney’s negligence the jury would have reached a different verdict. 

Meeting the “but-for” standard requires proof of a case within a case. The plaintiff in a malpractice suit has to convince the judge (or jury) that if the attorney had done his job, the plaintiff would have won some amount of money with reasonable certainty.

Proving that a lawyer lacked diligence or competence requires expert testimony–another lawyer’s testimony–unless the question of negligence is “clear and palpable to a jury of laymen, not a trial judge.”

Reviewing the summary judgment entered against Sachs in the malpractice case, the Court of Appeals for Missouri’s Southern District rendered a split decision in Roberts v. Sokol and Sachs. Since Becky didn’t want to pursue her friend Kelley, having received all the insurance proceeds, Becky had given up any right to seek damages for malpractice in the handling of the claim against Kelley.

But for Denise and her employer, the Court of Appeals held that summary judgment was wrong. Becky and her husband were entitled to the opportunity to present their case to a jury, so laypersons could decide whether her attorneys had been diligent and competent. If they are successful, they would next have to present the case within the case, showing that diligent and competent legal counsel would have been able to convince a jury that the accident was not entirely Kelley’s fault.

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About Harry Styron

I'm a lawyer who lives in Branson, Missouri, whose professional interests involve real estate, construction and local government.

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