Kinds of Damages Recoverable in Legal Malpractice Claims

Legal malpractice claims, a fusion of negligence and contract claims, necessitate a claimant to demonstrate the elements typically associated with negligence claims. The contractual aspect is embodied in the attorney-client relationship, a fundamental prerequisite for a legal malpractice claim. The existence and recoverability of damages are also necessary components of a legal malpractice or negligence claim. 

Many legal malpractice claims require you to prove the validity and viability of the underlying action wherein the attorney’s negligence occurred since the negligent act is generally insufficient by itself to show any compensable harm. For instance, even if the attorney’s negligence was his failure to file a claim within the statute of limitations, you still must demonstrate that that claim was valid and that damages can be proved and were recoverable. 

Types of Damages 

In a legal negligence action, you can claim certain damages, such as direct, consequential, and compensatory damages, or generally what you would have received had the defendant’s attorney’s conduct adhered to the standard of care. In many legal malpractice claims, this means showing that you would have received a better or more satisfactory outcome in the underlying matter where the attorney acted negligently and had the attorney not breached the standard of care. But merely because the outcome of your claim or defense was unsatisfactory does not always rise to a valid claim of malpractice.

There are generally three types of damages that you could collect in a legal malpractice action: direct, consequential, and compensatory.

Direct damages are those that flow from negligent conduct, such as the value of a judgment or reasonable settlement you should have obtained and/or the attorney’s fees you incurred to remedy that attorney’s errors or omissions. 

Consequential damages are those losses incurred due to the breach. An example of consequential damages is an attorney’s failure to appear at a hearing where you certainly would have prevailed and collected compensation. However, due to your attorney’s failure to appear, the court denies your claimed damages or awards damages to the opposing party. Also, consequential damages must have been foreseeable or within the parties’ contemplation. 

Compensatory damages can be economic and non-economic. Economic losses in a negligence claim can include:

  • Medical expenses
  • Lost earnings
  • Lost earning potential 
  • Value of damaged property
  • Lost economic opportunity or profit

Non-economic damages are:

  • Emotional distress
  • Loss of reputation
  • Pain and suffering
  • Permanent disfigurement 
  • Permanent disability
  • Lost or diminished enjoyment of life

Any alleged damages must be proved by the standard of by a preponderance of the evidence and cannot be speculative. They must also be recoverable in the underlying action so that if there is an insolvent defendant in the underlying action, the legal malpractice claim will not stand. 

An underlying action in many legal malpractice claims is for injuries sustained due to negligence by the defendant, who may have been a motor vehicle driver or the store, residential, or facility owner where you slipped and fell. In those actions, you can claim compensatory damages such as medical expenses, lost earnings, pain and suffering, lost earning potential, and other non-economic losses that are typically recoverable in these claims, provided you prove them to the applicable standard of proof. In Massachusetts, you can only obtain punitive damages in an injury claim if the victim in the accident suffered fatal injuries and the defendant’s conduct was grossly negligent or displayed a willful indifference to life or safety. Punitive damages are generally not available except where a Massachusetts law specifically allows for them, such as in the Consumer Protection Act, Chapter 93A.  

If the attorney’s negligence involved failure to provide legal advice that breached the standard of care, then non-economic losses are unavailable in most cases. In most of these cases, you would be limited to direct and consequential damages. 

Retain a Legal Malpractice Attorney from Burns and Jain

If you suspect that your attorney committed malpractice and that you were denied compensation that should have been awarded to you, call a legal malpractice attorney at Burns and Jain at (617) 227-7423 for a free consultation about your claim.

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