Pursuing a claim for legal malpractice as a plaintiff can be challenging.  In many jurisdictions, it is necessary to prove the “case within a case” – i.e., that “but for” the attorney’s negligence, the plaintiff would have recovered a judgment in the underlying action. 

In Pennsylvania, for example, our Supreme Court has noted that “a legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a ‘case within a case’).”  Kituskie v. Corpsman, 714 A.2d 1027, 1030 (Pa. 1998).  The idea, essentially, is that if the malpractice plaintiff would have lost his underlying action anyway, then any mistakes his lawyer may have made in handling that action amount to nothing more than harmless error. 

Several jurisdictions, however, have recognized the analytical limitations of always requiring proof of the case within a case.  As the Ohio Supreme Court has explained, for example, “we cannot endorse a blanket proposition that requires a plaintiff to prove, in every instance, that he or she would have been successful in the underlying matter.  Such a requirement would be unjust, making any recovery virtually impossible for those who truly have a meritorious legal malpractice claim.”  Vahilla v. Hall, 77 Ohio St.3d 421, 428 (1997).

The challenge thus becomes to determine when the test may properly be applied – and when, in fairness, it really should not. 

That is precisely the issue in a legal malpractice case I have been handling recently on behalf of a plaintiff.  In our complaint, we alleged that the defendant lawyer had failed properly to represent his client, a doctor, in challenging a two-year noncompete.  We alleged, for example, that the lawyer spent hardly any time at all on the file for the entire first year of the engagement (even as the noncompete period ran), and did not pursue settlement discussions, nor seek a preliminary injunction or other expedited treatment. 

In the malpractice case, the defendant lawyer responded, via preliminary objections, that the doctor had ultimately lost at trial on the merits anyway.  Thus, the lawyer argued, the “case within a case” could not be proven.  But in our brief opposing the preliminary objections, we argued that the lawyer’s malpractice had nevertheless caused actual harm – for example, by leaving the doctor in legal limbo during the critical two-year noncompete period such that he could not satisfactorily arrange alternative employment.

The case thus raises an interesting legal question as to whether the “case within a case” standard “always” applies (as defendants argue).  Or if it does not always apply (as we argued), then where should the line be drawn? 

In our case thus far, the trial Court has granted defendants’ preliminary objections via a summary order and without any explanatory reasoning.  The Court may, perhaps, have been of the view that existing law in Pennsylvania invariably requires proof of the case within the case.  But it remains to be seen whether the courts of appeal will agree.  Ultimately (in this case or another one), it might behoove Pennsylvania’s appellate courts to consider whether a more nuanced approach — such as the one articulated in Vahilla and the other cases cited in our brief — is more legally sound than trying to cram every square peg of a case into the round hole formed by the “case within a case” doctrine.