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Legal Malpractice

UNTIL FURTHER NOTICE, WE ARE NOT NOW TAKING ANY NEW LEGAL MALPRACTICE CASES.

WE ONLY TAKE LEGAL MALPRACTICE CASES RESULTING FROM PERSONAL INJURY CASES THAT WERE LOST DUE TO ATTORNEY MISTAKES OR NEGLECT. WE DON'T TAKE LEGAL MALPRACTICE CASES IN OTHER AREAS SUCH AS CRIMINAL OR DIVORCE OR CUSTODY LAW. If the underlying case was a Nevada medical malpractice case, we will consider a legal malpractice case if that case was lost due to attorney negligence. If the underlying case was a Workmen's Compensation case that was lost due to lawyer negligence, we cannot take such a case because we lack experience with Workmen's Comp. cases. To find a lawyer who is interested in legal malpractice cases, we suggest going to www.nevadajustice.org On the first page you will find a "Find a Lawyer" tab at the top of the page. Further down on the page you can find lawyers by practice area and this is a section for lawyers looking for legal malpractice cases. 

The Law Firm of Reed & Mansfield, Attorneys  Personal Injury & Property Damage, Las Vegas, NV

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Legal Malpractice happens when a lawyer fails to meet the accepted standards of the legal profession and the client suffers monetary damage. Fee disputes are different than legal malpractice. See our webpage Attorney v. Client Fee Disputes

The key to a successful legal malpractice case is pinning down exactly what professional conduct standard the lawyer violated and then showing that if the standard hadn't been violated the lawyer's client would have been much better off financially.

In fact, five things have to all fall into place to have a good legal malpractice case we can handle:

  • FIRST, We need a clear violation of the standard of care such as missing a deadline.
  • SECOND, We have to show that the underlying case had significant value.
  • THIRD, We need either malpractice insurance on the attorney who lost your case, or we need that attorney to have assets that ultimately can be collected on.
  • FOURTH, We need evidence which demonstrates that the lawyer's negligence has destroyed your case. For example, if your lawyer is pushing you into settling a case for an amount you believe is too small because you believe the lawyer did not prepare properly for trial there is not yet legal malpractice that could be claimed against a legal malpractice policy. Why? Because there is not yet a final outcome. If the trial judge says, "Case dismissed for lack of preparation," then you have a final outcome. (Technically, even in that situation the malpractice case might have to wait upon an appeal of the trial judge's dismissal to the Nevada Supreme Court--see Example Five, below.)
  • FIFTH, We have to be able to evaluate the case. As explained above, this means we pretty much restrict ourselves to looking at legal malpractice cases resulting from failed personal injury case.

Here are some examples of legal malpractice cases we have been successful with:

  • Example One: A medical malpractice complaint was dismissed on a technical error made by the plaintiff's attorney. The Plaintiff's attorney honorably advised the client of his mistake and advised the client to seek new counsel. We were hired and filed suit. Three years later we settled the case. The attorney who made the mistake urged his insurance company to settle at the outset. The insurance company insisted that the underlying medical malpractice case was no good, so Plaintiff didn't really have a loss. Because we had to prove the underlying medical malpractice case we had to hire our own medical expert to prove the underlying medical malpractice.
  • Example Two: A TV advertising car accident lawyer lost a client's case by missing a deadline. The problem was high turnover in the law firm so no one attorney was following the case continuously. The last associate on the case told the client the case was lost because the court was unfair. The client smelled a rat and hired us. After we filed suit this case was resolved fairly quickly.
  • Example Three: A very experienced lawyer filed a slip and fall case that arose out of an incident at a McDonald's. The lawyer didn't sue the right entity. (Most McDonald operations are independently owned franchises; the right business entity must be sued.) By the time the lawyer realized the mistake the two year statute of limitations had run. The lawyer honorably admitted his error to the client who hired us. We filed suit and the lawyer's malpractice insurance company paid for a private mediator; the case was resolved.
  • Example Four: A California law firm, with no attorneys licensed to practice in Nevada tried to negotiate a personal injury case arising out an incident in Las Vegas. As the statute of limitations was about to run, they wrote a complaint signed by the client without any indication that the lawyers had written it. This was filed in Las Vegas, supposedly to protect the client from the statute of limitations. But, Nevada law required the complaint to be served upon the Defendants within 120 days of filing. This was never done. Ultimately, the California law firm's malpractice insurance carrier paid up.
  • Example Five: An attorney timely filed a medical malpractice suit but missed a number of other deadlines. Finally, the trial judge dismissed the case. Plaintiff hired us. We filed suit. In the meantime the original attorney filed an appeal to the Nevada Supreme Court of the dismissal. It was obvious to me--and I think to his malpractice defense attorney--that the Nevada Supreme Court wasn't going to buy his appeal. Nonetheless, his malpractice defense attorney threatened to file a motion to dismiss our malpractice claim unless we stipulated to await the outcome of the appeal. After researching the law, we reluctantly agreed. After a couple of years the Nevada Supreme Court denied the appeal as expected and we re-activated the case and a year later settled it.

Unfortunately, many attorneys who commit malpractice compound their bad behavior by lying to the client and trying to get the client to believe that the loss of their case was someone else's fault. A typical "lie" involves forgetting to file suit within the two year statute of limitations and then telling the client that investigation showed the case was no good.

In Nevada the statute of limitations for most personal injury cases is two years. (It's one year for most medical malpractice cases.) If an attorney you hire well before the two year statute of limitations tells you two years or more after the injury that your case is no good, ask the lawyer to show you a file-stamped copy of the complaint they filed for you. If the lawyer can't produce one give us a call; the law firm you hired may have forgotten to file the complaint before it was too late.

Failing to Meet a Crucial Deadline

Lawsuits have to be filed within a certain time period known as the statute of limitations. (This time period depends on the type of case.) Occasionally, lawyers miss the dealine for filing the lawsuit with the result that the client's case is lost. If this happens, the client has a case against the lawyer IF the client had a good case in the first place. Although the statute of limitations for most personal injury cases in Las Vegas is 2 years, some years ago it was reduced to 1 year for most medical malpractice cases.: http://www.leg.state.nv.us/nrs/NRS-041A.html#NRS041ASec097.

Occasionally we get calls involving lost claims because attorneys didn't realize this. Also, it sometimes happens that the lawyer sues the wrong party or fails to include the correct party in the complaint. For example, if the claim arises out of an injury in a Burger King restaurant, it may be necessary to sue the individual franchisee running that store as well as the national company.

Lawsuits have to be served within a certain time after they are filed. In Nevada's state courts the deadline is usually 120 days under N.R.C.P. 4(i) http://www.leg.state.nv.us/courtrules/nrcp.html. Failure to make timely service can result in dismissal. I won a case against another law firm which filed suit on time but for some reason never got the complaint and summons served in a timely manner resulting in dismissal of the case.

A recent Nevada Supreme Court decision, Saavedra-Sandoval v. Wal-Mart Stores, 126 Nev. Adv. Op. No. 55 (December 30, 2010), emphasizes that the courts are serious about dismissing cases which are not timely served under this rule unless there is a very good reason.

I recently took a case against a personal injury attorney who does a lot of TV advertising. The client hired the TV lawyer 3 days after his car accident. A year later the other driver sued the client. The client promptly took the complaint against him to his TV lawyer. The client's auto insurance company defended him, but told him it would not represent him on his own case. The TV lawyer should have filed a compulsory counter-claim under N.R.C.P. 13(a), but did not. Instead, the TV lawyer waited until 3 days before the two year statute of limitations ran to file suit. The other driver's insurance then got the client's lawsuit dismissed because it should have been filed as a compulsory counterclaim.

N.R.C.P. 16.1 imposes another deadline on the attorney for the Plaintiff, the necessity to file a 16.1 Joint Case Conference Report. A recent Nevada Supreme Court Case, Moon v. McDonald Carano Wilson, L.L.P., 126 Nev. Adv. Op. 47 (December 16, 2010) affirmed a district court dismissal of a case for failure to comply with this deadline.

There are many other deadlines that can cause the dismissal of a lawsuit. If a lawsuit has been lost because the lawyer failed to meet a crucial deadline and IF the underlying case was good, and IF the client suffered substantial financial loss as a result, there is a good malpractice claim. To stand a good chance to recover, you would want the lawyer you are suing to have malpractice insurance or substantial assets.

Of course, if the lawyer you are suing is a drunk who is about to get kicked out of the bar for neglecting many clients and has no malpractice insurance, you may have a great case that isn't going anywhere.

Conflicts of Interest

Lawyers sometimes get in trouble by representing two or more people in the same case. Early in my career I was approached by a parent whose teenage child had been killed in a car wreck. The dead child's best friend was also killed in the same car. Both sets of parents were friends. Both teenagers had similar histories. (It wasn't like one was a great kid helping to support his widowed mother and the other a juvenile delinquent.)

Both sets of parents wanted me to represent them. They were agreeable to splitting any recovery 50-50 between the two families. The collision was the fault of the other driver who was charged with numerous violations. Ultimately I recovered insurance policy limits of $300,000 which was divided equally between the two families. Both families agreed to waive any conflict of interest and I represented both families without any problems.

BUT, if one of the teenagers had had a long rap sheet and the other a long list of achievements, it wouldn't have been fair to divide the recovery 50-50 and the same lawyer should not have represented both families. Or if the teenage driver had been partly at fault, even if most of the fault was that of the other driver, it wouldn't have been fair to split the recovery 50-50 and the same lawyer should not have represented both of them. Yet, in any of these cases, it would have been tempting for a lawyer to get the fees for representing both families.

The two easiest to prove violations of professional conduct include:

In the past year I represented a homeowner who was one of a large number of homeowners who were previously represented by the same law firm in a construction defect case. The law firm got a large settlement against the builders. Unfortunately, one of the homeowners had a unique fact situation that just got lost among all of the other homeowners represented by the same law firm.

The law firm had done a great job of getting a lot of money from the builders but it had done a terrible job of representing this one homeowner with special facts. This homeowner came to me and I won a settlement for him from his former law firm. NOTE: CONSTRUCTION DEFECT CASES ARE USUALLY NOT CLASS ACTION LAWSUITS, SO ATTORNEYS USUALLY OWE EACH CLIENT A DUTY TO REPRESENT THAT CLIENT'S SITUATION. IN A CLASS ACTION LAWSUIT, THE LAWYER ONLY HAS TO REPRESENT THE AVERAGE CLASS MEMBER.

But, it is not sufficient simply to prove a conflict of interest. It must also be proved that a better result would have been gotten for the lawyer if the lawyer did not have the conflict.

Understanding Legal Malpractice Insurance

Legal malpractice insurance is usually what is known as "claims made." This works very differently, than say, auto insurance. If you buy auto liability insurance for the period 1/1/12-1/1/13, then if you are ever sued for an auto accident that happened in that time period you are covered. But if your lawyer buys legal malpractice insurance for the period 1/1/12-1/1/13 that policy only covers claim made during that time period. So, if the lawyer missed a deadline on 6/6/12 and thereby destroyed your case, and he doesn't tell you and you don't find out until 2/2/13, if the lawyer didn't renew his policy, there is no coverage because the claim was made outside the coverage period. (A lawyer who retires from practice and wants malpractice insurance for claims made after he retires has to buy what is called a "tail policy.")

Suppose a lawyer's life and practice both begin to fall apart. One of the first expenses to get cut may be the annual premium for malpractice insurance. So as a practical matter, taking the example in the preceding paragraph, the deadline for the wronged client to make an effective claim, that is one covered by malpractice insurance, would be before 1/1/13 for the deadline missed on 2/2/12, not two years later.

Most Difficult Legal Malpractice Cases

Client Says Lawyer Didn't Have Settlement Authority:

Often cases settle at the last minute as a result of a defense attorney phoning the plaintiff attorney who then phones the plaintiff. Upon telephone agreements plans are made to cancel witness appearances for trial. What if the plaintiff then denies agreeing to the settlement? Probably one lawyer or another asks the judge to enforce the settlement, and the judge probably takes the lawyer's word over the client's. What if the settlement is well before trial and client denies signing a settlement agreement? If there is a signed agreement is the client's signature a forgery?

Dismissed Medical Malpractice Case:

Let's say the original lawyer gets the plaintiff's medical malpractice case dismissed because of some bonehead error like missing a deadline. Sure, the legal malpractice is obvious. But to win, Plaintiff essentially has to prove that the underlying medical malpractice case would have been a winner. Thus, the Plaintiff's lawyer has all the expense of putting on a medical malpractice case.

Stealing from Clients:

The worst kind of stealing from clients happens when an attorney takes a client's settlement and "borrows" it without telling the client. This is an offense that can get the lawyer disbarred and criminally prosecuted. To help prevent this N.R.S. 686A.325 requires that in a third party claim (where the client is making a claim against someone else's insurance), the insurance company, if it sends its check to the client's lawyer, must also notify the client directly in writing of the payment in all cases in which the payment is $5,000 or more.

In addition, the Nevada State Bar maintains a client's security fund to pay clients defrauded by their lawyers. For details on this program please contact the State Bar of Nevada at (702) 382-2200 or visit their website at www.nvbar.org/csf.  Due to limited resources, the maximum claim to any one person paid out by this fund is $50,000 and it could be less, depending on the fund's status. However, before this fund will pay out the attorney at fault must have been disbarred or suspended from the practice of law.

A smaller, harder to detect form of stealing in the case of personal injury cases is for the lawyer to deduct from the client's settlement the full amount of the medical bills, and then to compromise the medical bills and pocket the difference without telling the client. That is basically akin to stealing unless the client consents to such an arrangement. A client should always ask the personal injury attorney to give them a disbursement sheet showing how the settlement money will actually be distributed.

Some attorneys stay on the right side of the law by stating in their retainer agreement that they are entitled to a 1/3 fee on all discounts they negotiate on medical bills. At Reed & Mansfield we believe that part of the service you are paying for when you hire a personal injury attorney is that the lawyer will do everything possible to negotiate a reduction in your medical bills - and that no extra fee should be charged for this service.

Most Complaints About Lawyers are Much Harder to Evaluate

We get many calls from clients who paid their former attorney a great deal of money on an hourly basis and then got an unhappy result from the Court. Or it may be that they hire a lawyer on a contingency and also got a bad result. Or, it may be that the client feels the lawyer put all sorts of unfair pressures on the client to agree to a settlement that the client is unhappy with. These cases are very difficult to evaluate because the lawyer will argue that he or she made a reasonable judgment call, or that the judge or jury did a bad job. Because these cases are so hard to evaluate and prove, we do not take them.

We get calls from clients who claim their former attorney who lost their case misrepresented his or her experience in that type of case. This could be a good claim if it can be proved. Unfortunately, most representations are oral and hard to prove. For this reason if an attorney wants your case and claims experience in cases like yours it is a good idea to ask the attorney to send you a letter describing his or her prior experience in similar cases. If the attorney won't put a representation he or she just made in writing, you've been warned.

You can also go the Nevada Bar's website, look up the attorney and see if the Nevada Bar has disciplined the attorney for misconduct. The website will also tell you if the lawyer carries malpractice insurance. If they don't you are warned that if the lawyer ruins your case you may not be able to collect. Here's the Nevada State Bar website link to check an attorney out: http://www.nvbar.org/FindALawyer.asp.

You can also check out an attorney's credentials at www.avvo.com, and see if former clients have posted reviews on various sites such as Yahoo, Google. etc. You cannot be sure that any particular source has all the up to date information on an attorney, but checking the various free internet sources are a good place to start, especially the State Bar's website, above.

We often get calls from a client who says, "Attorney B told me Attorney A committed malpractice but Attorney B doesn't do malpractice cases." We'll talk to you in a case like this, but keep in mind that since Attorney B doesn't do malpractice cases, Attorney B may have been thinking, "Attorney A might have committed malpractice, I should point this out to the client, but since I don't do malpractice cases, I'm not going to take the time to carefully investigate whether Attorney A really did commit malpractice."

We also get calls from clients who actually have a judge's opinion criticizing their former attorney. Again, we are happy to talk to the client and see the file. However, the judicial criticism alone does not necessarily make the malpractice case. The critical opinion from the judge that would suggest a great legal malpractice case would also say that the client lost a great case through their attorney's incompetence. That sort of criticism from a judge is very rare.

Statute of Limitation for Filing Suit Against Attorney:

N.R.S. 11.207 provides that an action against an attorney for malpractice must be filed within 4 years after the plaintiff sustains damage or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered [the malpractice], whichever occurs earlier. This language is not so easy to interpret. For example, in the 2014 case of Brady v. New Albertson's, Inc., 130 Nev. Adv. Op. 68, 333 P.3d 229, the Nevada Supreme Court said that the 2 year statute of limitation is tolled pending the outcome of the underlying lawsuit in which the malpractice allegedly occurred. This means that if the case is dismissed because of attorney error and an appeal of the dismissal is filed, the parties have to await the outcome of an appeal before there is a right to legal malpractice claim. But in footnote 3 to that opinion, the Nevada Supreme Court said it need not address whether the 4 year statute was also so tolled because in the case before it the actual malpractice lawsuit had been filed within 4 years of the actual malpractice. Also, what is meant by the appellate process running could be unclear. Suppose it was a Nevada case but the attorney properly filed the underlying action in federal court, or a state other than Nevada or before an administrative body. This opinion doesn't tell us when the appellate process would end in that forum. 

N.R.S. 11.207(2) provides addtionally that this time limit is tolled (extended) during any period in which the attorney conceals any act, error or omission (relevant to the claim).

Sometimes a person who feels injured by their lawyer's carelessness will file a complaint with the State Bar of Nevada. FILING SUCH A COMPLAINT DOES NOT TOLL OR EXTEND THE TIME IN WHICH TO FILE SUIT AGAINST THE LAWYER. Unfortunately, the State Bar can take over a year to evaluate such a complaint. Therefore, if you have a complaint against a lawyer, do not think that filing a complaint with the State Bar extends your time to file suit against the lawyer.

Another situation which comes up is that the district court (the trial court) throws the case out because it feels the Plaintiff's lawyer has failed to do necessary things. The Plaintiff's lawyer files an appeal with the Nevada Supreme Court and hopefully is candid to the Plaintiff about what happened. The Plaintiff then hires a new attorney to pursue a legal malpractice case.

Now if the new lawyer files a legal malpractice lawsuit against the old lawyer, the old lawyer says, "You can't sue me at this point because until and unless the Nevada Supreme Court says the district court was right, it hasn't been finally determined that I committed malpractice. If I win the appeal the case get re-instated and there was no harm done."

Nevada law seems to support this line of reasoning and this is an argument that the time to file a legal malpractice lawsuit is tolled or extended during the time of the appeal. But the Nevada law I just referred to is what is known as caselaw; it is prior decisions of the Nevada Supreme Court. The Nevada Supreme Court is always free to change its mind in a new case and this can happen when Nevada Supreme Court justices retire or lose an election and are replaced with new justices.

Here are some additional Nevada Supreme Court cases on how to calculate the statute of limitations on a malpractice claim against a lawyer:

Jewett v. Pratt, 95 Nev. 246, 591. P.2d 1151 (1979) is one of a number of cases that says an attorney cannot be sued for malpractice until all of the facts concerning the malpractice are known. The unknown facts could include whether the attorney who got the bad result could fix it on appeal. Cases like this suggest that if an attorney makes a mistake and gets the case thrown out of the district court, an appeal to the Nevada Supreme Court, even if fairly hopeless, needs to be pursued before a legal malpractice case can be filed.

But, in Hewitt v. Allen, 118 Nev. 216, 221, 43 P.2d 345 (2002), the Nevada Supreme Court said that some appeals would be so hopeless that the statute of limitations begins to run when the district court throws the case out.

More recently, in Moon v. McDonald, Carano & Wilson, LLP, 306 P.3d 406 (2013), the Nevada Supreme Court held that if an attorney makes a mistake in a non-adversarial part of a bankruptcy proceeding, the statute of limitations is not extended until there is an appeal or other final resolution of the issue.

It seems to us that the better practice in a malpractice case is to file sooner rather than later. If the suit is filed too early, it may be dismissed without prejudice, or the parties may stipulate to put it on hold pending an appeal. But if the suit is filed to late, as the last two cited cases show, the case can be lost. Since it may not be possible to predict what the Nevada Supreme Court will eventually decide is "too early," it is better to file sooner.

Another interesting legal malpractice statute of limitations case could involve a will. Suppose Dad hires attorney to write a will in 2005 and dies in 2015. The will favors Dad's girl friend. Upon Dad's death it is discovered that the will is invalid, apparently due to the lawyer's incompetence. So Dad's property is passed on to those actual relatives who inherit in the absence of a will, not the girl friend. Has the statute of limitations run for the girl friend to sue the lawyer for malpractice? (There are additional issues involved in that sort of claim.)

Incidentally, this time limit statute (statute of limitations) that applies to lawyers also applies to malpractice actions against veterinarians.

In conclusion, in many cases it is not clear when the statute of limitation runs on a legal malpractice case.

Do Attorneys Have to Have Malpractice Insurance?

At this time few states require attorneys to have malpractice insurance. However, about half the states, including Nevada, require attorneys to advise their state bar whether they have malpractice insurance, and the state bar then makes this information publically available. In Nevada you can find this information about an attorney at www.nvbar.org and then clicking on the Find a Lawyer button. However, if the Nevada Bar is relying on the honesty of lawyers saying whether or not they have malpractice insurance. The bar is not demanding proof of legal malpractice insurance for this listing.

Clients should be aware that if they hire a lawyer without malpractice insurance and then have a claim against the lawyer, they will have a hard time finding a lawyer to take the case. Here is why: If you get a judgment against a lawyer for negligence the claim could possibly be discharged if the lawyer files for bankruptcy.

Lawyers with substantial assets to protect usually buy malpractice insurance--it's not super expensive. Marginal lawyers don't buy malpractice insurance. If a lawyer's practice starts to go bad that's when there is the biggest chance of the lawyer dropping the ball, but also the biggest chance the lawyer saves money by skipping the malpractice insurance.

Defenses to Legal Malpractice Actions:

We often get calls from clients who under pressure from their lawyers settle a personal injury case and then feel that the lawyer did a terrible job and forced them to settle for far less than the value of the case. Unfortunately, if a client has signed a settlement agreement we don't take the case. The defense will be that the client chose a bird in the hand to several in the bush. We do believe that clients get bullied by some attorneys into making bad settlements because the attorney was lazy or unprepared, but we feel that winning that kind of malpractice claim is too difficult.

Generally if the lawyer makes a judgment call, or if the issue has not been settled by the state supreme court (if a matter of state law) it is not malpractice if the attorney makes a decision that in hindsight is not good. For example, in many criminal trials the defendant wants to testify. But, in many cases if the defendant does testify the prosecution can bring up a prior crime that the defendant committed that otherwise couldn't be mentioned.

For example, if the defendant in a bribery case was convicted of a prior felony for a crime involving dishonesty within 10 years and he testifies, the prosecution can probably bring up the prior crime to impeach his honesty. Whereas if the defendant remains silent during the trial the prosecution can't bring up the prior felony conviction. This is a tough decision for the defense because the jury may well think that a defendant who doesn't testify is guilty. But if he testifies and the jury is allowed to find out about the prior felony conviction, they may assume he is guilty of the current charge as well.

Defense attorneys typically involve the defendant in this kind of decision. But if the advice the attorney gives arguably helps lead to a conviction, there is usually not a legal malpractice case because such judgment calls sometimes must be made, and at the time there is no way to be sure what choice will be best. Further, in criminal defense cases, the client may have to show actual innocence in order to prevail on a malpractice claim.

In many bankruptcy cases the lawyer must apply to the court for approval of their fees. (This is true in many other cases such as probate cases in Nevada involving a fee over $3,500.) Some bankruptcy judges rule that if the client does not object to the fee application the client has waived any claim of legal malpractice because the bankruptcy court already passed judgment on the quality of the legal services in approving the fee. Conversely, if the bankruptcy judge criticizes the attorney in a written opinion, the written opinion may go a long way toward proving legal malpractice, but there then remains the issue of how much damages the client suffered, and whether these damages were offset by the court chopping the fee request.

In some cases, such as a Nevada Asset Protection Trust, there may be a special statute shielding attorneys from liability under certain circumstances.

The defense team in a legal malpractice case will often argue that the underlying case was no good at all or simply worth very little. For example, client has a slip and fall at a McDonald's. Let's say the case would be worth $100,000 because of the client's injuries if there was good liability. The client's original lawyer makes a mistake and loses the case. We sue the original lawyer. The original lawyer can still argue that juries usually assess some fault against a slip and fall plaintiff and that therefore the value of the case is less than $100,000.

Or, in a botched medical malpractice case, the original attorney's legal malpractice defense may argue successfully that the value of the legal malpractice case is reduced because of various laws that doctors and insurance companies got passed to reduce the value of medical malpractice cases. This is known as the "case within a case" defense. In other words, even if it is clear that the original attorney lost a case thru negligence, we still have to prove what the original case would likely have been worth.

Sadly, there can be a case where the Nevada State Bar has disciplined a lawyer for botching a case without it being a "good" legal malpractice case. For example, Client negotiates on his own to loan money to a borrower secured by a second mortgage and the borrower's personal guarantee. He then hires Lawyer to do the paperwork. Lawyer forgets to get the personal guarantee or writes up an ineffective personal guarantee. Borrower defaults and because the real estate market has gone down the second mortgage is worthless.

Client now learns that the personal guarantee was never properly done. It sounds like a great case against Lawyer. Client files a complaint with the Nevada State Bar which investigates and disciplines Lawyer for failing to get a proper personal guarantee. But, if in fact, the Borrower filed for bankruptcy shortly after the default on the second mortgage and the Borrower had debts far in excess of assets, the defense will successfully argue that Lawyer's mistake in failing to effect a good personal guarantee didn't matter because the personal guarantee would have turned out to be worthless or near worthless since the Borrower filed for bankruptcy. Of course, if the Borrower had considerable assets at the time of the default on the second mortgage, this could be a good legal malpractice case, assuming that Client contacted lawyer before the statute of limitations ran.