Legal malpractice involves two law suits--the suit against the lawyer and the underlying claim that the lawyer was responsible for handling. There is chance that any claim will fail. It would be impossible to show that Horace would have won his claim against Sally.

If Horace were to lose his suit against Dewey because Horace might have lost his suit against Sally, then no lawyer would ever be liable for negligently failing to file on time.

But if every lawyer would be liable for failing to file a timely claim, then lawyers would have to pay damages even if the underlying claim was a bad one. This would be inconsistent with the theory that tort damages are supposed to compensate victims for their losses. The client who has lost a bad claim has lost nothing of value.

Horace only needs to show that it is more likely than not that he would have won his claim against Sally.

Link back to problem 5.