ORRICK HERRINGTON & SUTCLIFFE LLP v. Superior Court

The law in California is well established that when legal malpractice involves negligence in the prosecution or defense of a legal claim, the case-within-a-case methodology must be used. More specifically, for purposes of this case, which involved settlement of litigation, the plaintiff must prove his opponent in the underlying litigation would have settled for less, or that following a trial, plaintiff would have obtained a judgment more favorable than the settlement.

Real party in interest Michael A. Malcolm sued petitioners for malpractice, alleging they omitted critical terms from a marital settlement agreement. In response to a summary judgment motion, Malcolm did not produce evidence showing that his former wife would have settled for less, or that he would have obtained a judgment more favorable than the settlement. Instead he claimed as damages the legal fees he spent in an unsuccessful attempt to overturn the settlement. Contrary to the conclusion reached by the trial court, those fees do not represent possible tort damages. As there is no evidence of any other recognized tort damages, this case is simply a fee dispute. The action should go forward, but only on…