Page 15 - John Hundley 2010

Sharp Thinking

No. 35 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. July 2010
“Case Within A Case” Not Always A

Requirement in Legal Malpractice

By John Hundley, 618-242-0246, Jhundley@lotsharp.com

The door for avoiding the “case within a case” requirement in legal malpractice matters is a bit
wider under an important new decision handed down by the Illinois Appellate Court last month.

Long the bane of many a legal malpractice plaintiff, the “case within a case” requirement means –
at least generally – that it is not enough to prove that one’s lawyer was negligent; one must prove that
the negligence by the lawyer was outcome-determinative with respect to the underlying matter.

In other words, generally the malpractice plaintiff must prove not only a good malpractice case
against the lawyer, but also that he would have won in the underlying lawsuit but for the lawyer’s
malpractice. That tends to mean that the malpractice plaintiff must try, in addition to the issues
regarding the lawyer’s alleged misdeeds or omissions, the underlying “case within the case”.
But Union Planters Bank v. Thompson Coburn LLP, __ Ill.App.3d __, 2010
WL 2222808 (5th Dist. June 3, 2010), holds that the “case within a case”
requirement does not necessarily apply when the lawyer’s alleged malpractice
arose in a transactional, rather than litigation, context. Moreover, in dicta Union
Planters says that even in the litigation context “case within a case” is simply
“generally” the rule. Litigants seeking to expand the implied exceptions to that
general rule may find helpful the decision’s thorough exploration of the context in
which “case within a case” arises.

“Case within a case” arises as a result of the law’s causation requirements in tort cases,
Justice James M. Wexstten explained in Union Planters. Moreover, he ruled, even when the
malpractice plaintiff casts his claim in terms of contract, he must plead and prove a breach of a duty
which proximately causes damages – the classic definition of negligence. Hence, whether a tort or
contract label is applied, negligence causation requirements must be surmounted. This
includes both the cause-in-fact and the proximate-cause requirements, Wexstten noted. Meeting the
requirement of causation-in-fact means that the plaintiff must prove that his injury would not have
occurred but for the alleged negligence of the defendant.
Because most malpractice claims arise from acts or omissions made in a litigation context, the
but-for test has an obvious implication: If you would have lost anyway, the negligence of the lawyer is
not the cause-in-fact of your injuries. Hence, because under basic tort law it is the plaintiff’s duty to
prove causation-in-fact, that means he generally has to prove “the case within a case”.
But here is where Union Planters parts ways with usual malpractice theory. In Union
Planters, the alleged malpractice was not litigatory but transactional, the court ruled. Specifically, at

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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