Friday, April 9, 2010
The Maryland Court of Appeals has held that the "trial-within-a-trial" doctrine is appropriate in legal malpractice actions where the underlying matter has already been litigated." Further, the law firm/defendant "is not limited to the defenses actually raised by his client's opponents, but rather, may only assert those claims or defenses that the trier of fact determines the opposition would have raised if there had been no breach of the attorney's duty."
In the underlying case, the law firm had failed to seek an extension to elect the client/widow's statutory share of her late husband's estate. A court refused to permit the statutory election and the client suffered a financial loss of thousands of dollars. The law firm contended that there was no liability because the court had erroneously granted an earlier pro se extension motion. The law firm argued, and the court here agreed, that the doctrine requires the tribunal dealing with the legal malpractice claim to retry the matter "as if the attorney had never breached his duty to determine what would be the likely result." (Mike Frisch)