Trial Within a Trial
The First District affirmed the dismissal of a legal malpractice case for failure to plead damage, but reversed the “with prejudice” nature of the dismissal in order to allow plaintiffs to amend their complaint to allege damages caused by alleged malpractice.
The defendant in this legal malpractice litigation drafted and amended trust documents. Ambiguities in the documents led to litigation over the meaning of the documents. The trial court dismissed the legal malpractice claim because the plaintiffs had failed to plead that the lawyer’s negligence caused their damage. In the Appellate Court, the plaintiffs argued that the defendant’s negligent drafting led them to incur attorney fees litigating the meaning of the documents he drafted. The appellate court noted that plaintiffs had not pleaded that, if the documents had been properly drafted, they would have incurred lower litigation fees in the trust litigation. Therefore, it affirmed the dismissal. The court, however, held that plaintiffs should be allowed to amend their complaint to make such an allegation.
Illinois Legal Malpractice and Defense of Lawyers Blog — Novack and Macey LLP
(This is for informational purposes only and not legal advice.)
Dowd v. Berndtson, 2012 IL App (1st) 122376, 983 N.E.2d 34 (trial within a trial within a trial needed when legal malpractice attorney commits malpractice)