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Damages in Suits Against Lawyers

Several Recent Developments

PUBLICATION:

ISSUE: N/A

DATE: October 2004

The main topic of this paper concerns several recent developments in the law governing damages in suits against lawyers. In particular, we will discuss four recent topics. First, we will discuss the new legal refinement which may imply–and certainly suggests–that plaintiffs suing lawyers need more expert witnesses then they have obviously and always needed in the past. It will not appear immediately that this first discussion pertains to damages as opposed to injury–but it does. Second, damages for mental anguish have been substantially eliminated from malpractice actions against lawyers recently. We will be critical of the rule, and we will suggest that there may be an exception to it. Third, we will discuss fee forfeiture as an approach to damages when fiduciary duty breaches are at stake. Fourth, we will suggest a creative case-based way to think about damages in cases against lawyers; although we will have to concede that the approach we will suggest may not only be creative but dangerously adventuresome.