[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

which juries do not need an expert to assess whether the lawyer failed to perform a basic
duty owed to the client. The first involves breaches of fiduciary duty such as in Bayview.
The second group of cases involves lawyers who miss obvious statutory time deadlines, such
as statutes of limitations. 22 Finally, some courts have concluded that plaintiffs do not need
expert testimony to prove that lawyers should perform two basic functions: research
applicable law 23 and investigate relevant facts. 24
Causation Once breach of a duty is established, courts require plaintiffs who allege legal
malpractice to prove both actual and proximate causation. The “but-for” standard of actual
causation and the foreseeable risk rule in proximate causation can present formidable
obstacles to the former client. 25 In Bayview, for example, plaintiff will have to prove that it
would have prevailed in a deficiency judgment action.
When a claim is based on the expiration of a time period such as a statute of
limitations, plaintiffs who allege legal malpractice are required to prove the “case within a
case,” as was done in Togstad. 26 Some think this requirement unfair and argue that some
sort of increased risk doctrine should be applied in such situations, earning the plaintiff a
damage award without proving the case within the case. 27 A few courts recognize an
alternative: the use of expert testimony to prove the value of the loss caused by the
negligent lawyer as measured by the settlement value of the underlying matter. 28
Damages Because malpractice is a species of negligence, damages must be shown. 29 For
example, in Bayview, even if the jury determines that the plaintiff would have obtained a
deficiency judgment, the defendant would be relieved from any accountability for any
uncollectible portion of the verdict. 30 In Sickler, the plaintiff relied on expert testimony to
establish the “cascading series of events” that caused the plaintiffs to lose their otherwise
successful business.
Traditionally, proving damages meant proving monetary or physical injury. Some
clients also allege foreseeable emotional harm and may be able to recover from the
professional who caused it. 31 Bayview also illustrates the willingness of modern cases to
extend the availability of punitive damages to professionals where their conduct is grossly
negligent or outrageous in character. 32
Defenses Professionals often allege several defenses to malpractice suits. They may seek to
implead or be granted contribution from other professionals who provided services to the
client (such as Orr and his law firm in Sickler). Statutes of limitations can differ for breach
of contract, fiduciary duty, and malpractice, and are also commonly alleged as defenses.
Most courts agree that because clients depend on professionals, the statute is tolled during
the time the professional-client relationship continues. Most courts also apply the
“discovery rule” to claims against lawyers; the statutory time period does not begin to run
until the plaintiff reasonably should have discovered the elements of the cause of action. 33
Courts follow similar reasoning when deciding whether comparative negligence should
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