Suder v. Whiteford, Taylor & Peston, LLP, Court of Appeals of Maryland, April 9, 2010.
Facts: Suder filed an action for legal malpractice against her former attorneys, alleging failure to timely file a request for a fifth extension which, ostensibly, caused her to receive approximately $270,000 less under a will than she otherwise would have. The defendant attorneys admitted that they failed to timely request an extension, but argued that that omission was not the cause of Suder’s alleged damages.
The defendant attorneys argued that even if they had timely filed a request for a fifth extension, Suder would not have collected her statutory share because of the invalidity of her original request for extension at which time she was not represented by the defendant attorneys. Accordingly, the attorneys contended that their "mistake" did not place Suder in a worse position, and that Suder could not prove proximate cause under the "case within a case" doctrine.
Suder argued that the "case within a case" doctrine constitutes a "hypothetical…rewrite of history," and even if it is to be used, the defendant attorneys must be limited by the underlying defendants’ waiver of their right to challenge a previous extension.
Issue: Must Plaintiff establish proximate cause by proving the underlying case in the malpractice case? If so, are the former attorneys limited to only those defenses previously raised by the underlying adversary?
Ruling: Suder must show proximate cause under the "case within a case" doctrine. The defendant attorneys were not limited to only those defenses raised previously by Suder’s adversary in the underlying action.
The trial-within-a-trial doctrine is "the accepted and traditional means of resolving issues involved in the underlying proceeding in a legal malpractice action. It should be applied where there is no bright line malpractice… The trial-within-a-trial doctrine exposes "what the result `should have been’ or what the result `would have been’" had the lawyer’s negligence not occurred.
Accordingly, the Court held that the "case within a case" method was the appropriate way to determine whether Suder’s adversary in the underlying litigation would have successfully challenged her requests for extensions, had the defendant attorney timely requested a fifth extension. In that regard, the Court noted that Suder’s adversary in the underlying litigation was permitted to challenge the validity of any extension throughout the appellate process, up until close of the estate administration.
Moreover, the Court noted that the defendant attorneys were limited to those defenses Suder’s adversary "would have" raised in the underlying action upon the filing of a fifth extension, rather than only those defense that had been raised previously:
Here, [the defendant attorneys are] given the chance to present the defense as merely the knife that severs the causal link between its own negligence and Suder’s damages in this malpractice action. Relitigating the underlying action for the purposes of a malpractice suit is simply a tool by which the litigants are able to wind back the clock to determine whether the attorney proximately caused the injury.
To ascertain what defenses Suder’s adversary would have raised with regard to a fifth extension, "the trier of fact should examine the record of the underlying controversy and hear testimony from the parties and counsel."
Lesson: The "case within a case" method continues to be the golden test for proximate cause in legal malpractice matters. In defending against malpractice actions, attorneys will be limited to those defenses the underlying adversary "would have" raised — a fact sensitive determination.