By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Legal Malpractice on Tuesday, January 13, 2015.
The extent of your injury, and thus what you might recover from your attorney in a legal malpractice case, is a crucial question in determining whether you have a claim that is financially prudent for you to pursue. If your damages are low or speculative, then you or your attorney may be taking a big risk in investing time and money in trying to recover something. For that reason, one of the first areas of analysis – before even addressing whether your attorney committed malpractice – can sometimes be what the nature of your injuries are.
Virginia follows something known as the “economic loss rule.” Because a lawsuit against your attorney is technically a breach of a contract between lawyer and client, the law in Virginia does not allow you to receive more than you could or should have received under the scope of that contract. This lost value has to be expressed strictly in terms of dollars and cents, as the name “economic loss rule” suggests. In a legal malpractice claim, this means that your loss – and thus the most you can get in a verdict or settlement – is the difference between what you should have received if your attorney represented you properly and what you actually received due to your attorney’s negligence.
In a legal malpractice claim, you cannot be awarded for “non-economic” injuries caused by your lawyer, such as emotional distress, pain and suffering, humiliation, and the like. However, if those were the kinds of damages that your lawyer could have recovered for you in your underlying representation – such as in a personal injury claim – then you can recover what your lawyer could have recovered for you. That only makes sense: if your personal injury case was “worth” $50,000 in economic injuries and $50,000 in non-economic injuries, and your attorney caused you to lose all of that, then the value of what he lost you was the full $100,000.
Additionally, you cannot be awarded attorney fees and other costs that you pay to pursue the legal malpractice claim itself. Consequently, if you pay a lawyer $20,000 to represent you in a malpractice claim, that is a “sunk cost” that you will never get back. Paying $20,000 to recover the $100,000 is a “net” to you of $80,000; paying $20,000 to recover $15,000 is a net of negative $5,000, a much worse return on your investment. This is the sort of analysis that an attorney absolutely must perform in determining whether it is at all worthwhile for you to consider a legal malpractice claim.
If you have a complaint against your former attorney and you wish to discuss a potential malpractice claim, please do not hesitate to contact an attorney at The Duff Law Firm.