Two Figures in the Picture: How an Old Legal Practice Might Solve the Puzzle of Lost Punitive Damages in Legal Malpractice
Bickers, John M.
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When lawyers err, clients must pay the price. If a lawyer’s action, or inaction, prevents a client from succeeding in a lawsuit, the lawyer must pay the amount necessary to make the client whole. But what does it mean to make the client whole? A puzzle appears when a finder of fact in a legal malpractice case determines that punitive damages in the original lawsuit were appropriate. Punitive damages are not meant to restore the client to her original position. By definition, they are meant to punish the original defendant for the egregiousness of his conduct. The plaintiff receives them as a response to the lawsuit, but there is no necessary link between the plaintiff’s injury and the punitive damages. State courts have responded to this conundrum by categorically awarding punitive damages or categorically rejecting them. Awarding courts have focused on the need to make the plaintiff whole; rejecting courts have emphasized the fact that the attorney’s simple negligence does not compel the award of punitive damages. Neither decision has any logical primacy. Indeed, like an optical illusion, one can look at the situation from two different perspectives and see two different outcomes as logical, or even compelling. This article reviews the arguments and counter-arguments about lawyer malpractice and punitive damages. It then suggests a policy solution parallel to that adopted by the medieval law of deodand. That system of forfeiture of inanimate objects blamed for human deaths had to account for cases in which the object no longer existed. In those cases, the law focused on the wrongdoing rather than the injury. In similar fashion, this article concludes that the best solution to the attorney malpractice and lost punitive damages problem is to focus on the original wrongdoer, and not transfer responsibility to the attorney. Doing so leads to the same legal result as that of the states that categorically reject the transfer of punitive damage awards to malpracticing attorneys, but with a sounder basis.