Practitioners should consider bifurcating the “trial within a trial” portion of a legal malpractice case to avoid prejudice and promote efficiency.

A legal malpractice action arising out of litigation is, in practice, two cases in one. In general terms, a plaintiff must prove both that his or her lawyer failed to meet the standard of care and that the failure harmed the plaintiff. To prove the standard of care and that the lawyer failed to meet it, the plaintiff has to introduce the testimony of a legal expert who can testify to what was expected of the lawyer and the way(s) that the lawyer did not meet the appropriate standard. That portion of the case, the “legal malpractice case,” is generally similar to many other types of cases involving professional negligence and expert testimony.

But in the course of litigating on behalf of a client-be it developing strategy, conducting discovery, or trying a case – unplanned incidents can occur.  It could be in the heat of an intense deposition, or in the middle of a trial with dozens of rules and legal principles in play at any given moment.  Sometimes lawyers make mistakes. Most are harmless or are corrected in one way or another, but some may materially harm a client’s case. With so many facts and rules at play, it is sometimes difficult to determine after the fact whether a client would have done any better if the lawyer had not made a particular mistake. To determine what would have happened if just one piece of evidence had been held out or one argument had been made, courts have settled on the “trial within a trial” procedure.

The legal malpractice plaintiff puts on the “legal malpractice trial” in which they try to prove that the lawyer made a mistake. But within that case, the plaintiff also tries the “underlying case” to prove what would have happened had their former lawyer not made a mistake. The plaintiff is allowed to try the case the way they say it should have been tried, and their former lawyer takes the place of the other party, opposing their former client. The doctrine is explained in detail in Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230 (2010), a case briefed by Eccleston and Wolf attorneys.

By default, the “legal malpractice case” and the “underlying case” are tried at the same time, where the judge or jury would hear evidence of both the standard of care and the underlying case in the same proceeding. This creates a very real problem for the attorney accused of malpractice.

Think of a legal malpractice case based on an underlying divorce. The plaintiff would offer the evidence from his divorce case. He would also offer the testimony of his legal expert that his attorney did not meet the standard of care when she failed to introduce evidence of his wife’s bank accounts at trial. The plaintiff would point this out at the beginning and end of the legal malpractice trial, arguing that if the judge had reviewed the bank accounts, the plaintiff would have received substantially more money when the couple’s assets were divided up. There would be lengthy testimony by experts about the importance or unimportance of the bank accounts, and the plaintiff might testify that he repeatedly sent copies of the account statements to his lawyer. As a result, the judge or jury in the legal malpractice case would be extremely focused on the evidence of the bank accounts.

If the evidence is persuasive, the hyper-focused judge or jury might feel it was a critical point in the divorce case and decide that if it had been included, the plaintiff would have done better. But that defeats the entire purpose of the trial within the trial. The purpose is not to determine whether a missing piece of evidence was persuasive, but whether it would change the overall outcome at the trial. It could be that the failure to introduce the bank accounts had absolutely no effect on the trial because the plaintiff was already so independently wealthy that the judge was unwilling to transfer any of the plaintiff’s wife’s assets to the plaintiff. But by fixating on the bank account evidence, the legal malpractice judge or jury might feel that surely the plaintiff would have received more of the couple’s jointly controlled money if there was evidence that his wife had more money. That is not a criticism of judges and juries, it is a result of basic human psychology. If one piece of evidence is discussed for a large portion of the trial, it will inevitably be perceived as critical to the case. The brain sees the “tree” of the wife’s bank accounts and misses the “forest” of the husband’s brokerage accounts and investment properties.

The solution to this problem is to bifurcate the trial of the underlying case from the trial of the legal malpractice case. The underlying case should be tried first and the legal malpractice case second. Maryland Rule 2-503 provides for exactly that procedure and for the purposes served here— avoiding prejudice and increasing efficiency.

Bifurcation Avoids Potentially Prejudicial Presentations of Evidence

If the two phases are bifurcated, the plaintiff can first try the underlying claim cleanly, without long-winded expert and lay witness testimony about one particular piece of evidence. The judge or jury will not be told anything about the plaintiff’s lawyer and can see the entire forest of evidence rather than just one tree. If the plaintiff achieves a better result in that first phase, he has proved that he was harmed by the attorney’s omission of the evidence, and the legal malpractice case can go forward to determine what exactly the attorney did or did not do and whether the attorney’s conduct breached the standard of care. On the other hand, if the plaintiff achieves the same result that he did with his former attorney, it is clear that he was not harmed by the error. There is no need to go through the legal malpractice case. Either way, the attorney accused of malpractice avoids prejudice in one or both phases of the case.

Bifurcation Promotes Efficiency

The second benefit to bifurcation is efficiency. The underlying issue may be a simple division of marital assets, or it may be a complex antitrust issue. But because the legal malpractice case involves expert testimony from both sides, it is guaranteed to be somewhat complex and time-consuming and is worth avoiding if it is not legally necessary. If the plaintiff fails to achieve a different result in the underlying case, there will be no need to reach the legal malpractice case, and the parties and the court will save considerable time and resources. If the plaintiff succeeds in proving that he should have achieved a different result, then the legal malpractice claim can be tried in a streamlined fashion, based purely on the attorney’s conduct and whether such conduct met the standard of care, without confusion of the issues and excessive time spent explaining how the attorney’s conduct fit into the factual minutia of the underlying case. Because the details of the underlying case will be much less important in the malpractice phase, the parties will not be required to duplicate all of the same testimony from the first phase. Additionally, because the attorney now knows the plaintiff will meet at least one of the elements of his case, the attorney may wish to take the opportunity to settle a potentially losing malpractice case before litigating the details of his or her conduct.

In summation, bifurcation of a legal malpractice trial can render a procedurally and factually complicated “double” proceeding substantially easier for a judge or jury to understand and decide. It can avoid undue prejudice, decrease the parties’ legal fees, and conserve the court’s valuable time. It is just one of the many legal complications which Eccleston & Wolf attorneys regularly address in the procedurally unique area of attorney malpractice claims.

Eccleston & Wolf is the established, preeminent, attorney malpractice defense firm with regard to lawyer’s professional claims, including disciplinary matters. The firm has represented thousands of attorneys in the Mid-Atlantic Region in both jury and non-jury cases, covering every area of practice. Additionally, the firm represents lawyers before the attorney grievance boards and commissions.

To see how the qualified attorneys at Eccleston and Wolf can assist you, contact us at our Maryland, Virginia, or D.C. office today!

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