In any legal malpractice action, the client must prove the damages sustained as a result of the attorney’s improper conduct. This may be particularly difficult if the attorney’s error occurred in litigation because the client must prove what would have happened in the litigation if his attorney had not erred.
Ordinarily, to do so a client must prove “a case within a case” — that the client would have won if his attorney had not committed malpractice. In some cases, it may be possible to claim the attorney’s error caused the settlement value of the case to decrease.
Also, in litigation cases, the client must show that the jury award or a reasonable settlement amount could have been collected from the defendant in the underlying case.
Economic damages may be recovered in all forms of malpractice cases. In litigation cases, economic damages may include any elements of damages that the client could have recovered in the underlying litigation, including out of pocket losses, mental anguish damages, lost pre-judgment and post-judgment interest, and lost court costs.
Mental Anguish Damages
Mental anguish damages are ordinarily not recoverable in malpractice claims based on negligence, but may sometimes be recovered in Deceptive Trade Practices claims.
Exemplary damages may be recoverable if an attorney acted with malice or committed fraud. These awards are capped by statute, but there are numerous complicated exceptions.
Similarly, clients who are able to prove that attorneys knowingly or intentionally violated the Deceptive Trade Practices Act may be entitled to statutory damages in an amount up to two times the award of actual damages.
Forfeiture of Fees
If a client wins on either a breach of fiduciary duty claim or a DTPA claim, the attorney may be required to give the client any fees he collected on the case.
A client may not recover the amount of fees he had to pay to bring a claim against his first attorney except on a DTPA claim or as part of exemplary damages if such damages are recoverable.