To bring a legal malpractice claim against a previous lawyer, a client must have suffered a loss for which he may seek monetary damages. In an Illinois legal malpractice case, damages are measured by the amount that he would have recovered butfor the lawyer’s negligence. These damages must be calculable and not be speculative. Establishing damages often requires expert testimony. When the damages arise out of the client’s inability to properly prosecute or defend in the underlying case, the client must prove what the recovery or liability would have been absent the lawyer’s malpractice. Once negligence has been established, the trier of fact will determine the net value of the underlying claim.
For instance, if the client was a former plaintiff in the underlying litigation, the value of the underlying claim is what the client would’ve recovered at trial. Illinois courts have created some exceptions, however. Lost punitive damages are not recoverable in a subsequent legal malpractice action. A court has also found that the client cannot recover from his lawyer any prejudgment or post-judgment interest that would’ve been awarded on the underlying judgment.
Sometimes a client settles a claim prematurely or for a lesser amount than the client could have as a result of the lawyer’s malpractice. In this case, the damages would be the difference between what the client settled for and the amount the client would have obtained without it.
When a client loses a cause of action because the lawyer failed to bring it within the statute of limitations or properly preserve it, the proper measure of damages is the amount of damages the client would have recovered and collected if the lawyer had properly prosecuted and prevailed in the action. As part of these damages, the client may recover certain additional remedies authorized by the underlying statute. For instance, if a successful claim would have entitled the client to attorney’s fees and a statutory interest on that claim, the client could recover these from his negligent attorney who failed to bring the claim. Proving these damages can be complicated because it requires recreating a lawsuit that was never filed in the first place, and it is especially necessary to seek experienced counsel for assistance.
The damages in a legal malpractice claim can include any additional legal fees above and beyond those a client would have incurred without the lawyer’s malpractice for fees required to repair or mitigate the effects of the malpractice or for litigation caused by the malpractice (but not those fees spent litigating the malpractice suit). This is an attractive option for those injured by their lawyers’ transaction-based malpractice involving negligent drafting or counseling, which then led to unnecessary litigation or other expenses that would not have happened if the lawyers were not negligent in the first place. However, punitive damages are generally not recoverable in legal malpractice cases.