March 26, 2012 Articles

Damages: You Can't Always Get What You Want

Recent case developments prove the vitality of the familiar principle that malpractice plaintiffs may recover what is needed to make them whole, but nothing more.

By James A. Brown and Erin L. Delatte

Recent case developments underscore the importance of proving up damages with reliable and specific evidence and the continued vitality of the familiar principle that malpractice plaintiffs may recover what is needed to make them whole, but nothing more. Courts applied these principles to cases involving alleged uncollectible judgments, collateral-source funds, interest on settlement agreements, and collateral attorney fees. Other cases restricted recovery of emotional-distress damages in legal-malpractice cases. In breach-of-fiduciary-duty cases, the courts remained willing to allow claims for all damages that could reasonably be attributed to the breach. Overall, appellate courts looked carefully at damage theories and awards, confirming that careful testing of causation and damage theories remains a fertile area of damage control in legal-malpractice cases, particularly on appeal.

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