The Bar News

Actual damages and legal malpractice: Fox v. Seiden

If you've been hired to bring a lawsuit and you commit malpractice by, say, blowing a statute of limitations, it's conceptually easy to calculate actual damages, authors Kenneth J. Ashman and Neal D. Kitterlin observe in the July General Practice, Solo & Small Firm newsletter. "If the defendant had the money to pay the damage award and...the client would have succeeded in his suit against the defendant but for the attorney’s malpractice, the client suffered actual damages—that is, real loss—as a result of the attorney’s neglect."

So what if a defense lawyer commits malpractice and loses as a result, but the defendant-client doesn't have the money to pay the judgment? Has he suffered actual damages? Yes, ruled the Illinois Appellate Court in Fox v. Seiden: "[T]he existence of the judgment alone is sufficient to constitute actual damages," Ashman and Kittlerin write. Read their analysis.

Posted on July 27, 2009 by Mark S. Mathewson
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