#legalmalpractice

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Legal Malpractice: Settle and Sue Case

The California Court of Appeals recently issued a decision in Namikas v. Miller, which was a settle and sue case arising from a dissolution of marriage. Plaintiff sued his former attorneys for negligently recommending he pay his ex-wife permanent spousal support of $7,000 per month. Plaintiff contended that he would not have agreed to pay the $7,000 per month spousal support had he known that the trial court had to consider the marital standard of living in deciding permanent support. Plaintiff alleged that the settlement, which included the agreement to pay $7,000 per month on spousal support, was excessive because his dissolution attorney improperly calculated permanent support based on the DissoMaster guidelines, which the court does not use for permanent support. Courts are mandated by Family Code section 4320 to consider the marital standard of living, along with other factors in assessing the need for permanent spousal support. 

  Summary adjudication was granted to defendant firm based on Plaintiff’s failure to prove causation and damages under a Marshak analysis. The Court of Appeal affirmed, holding that Plaintiff had failed to establish a triable issue of fact as to whether, in the absence of the alleged negligence, he would have obtained a more favorable judgment or settlement. In support of his argument, Plaintiff introduced an expert declaration with marital standard of living analysis, and an opinion that the use of the DissoMaster calculation resulted in a higher level of support than would have been obtained at trial. Plaintiff went on to argue that based upon the standard of living analysis, the spousal support agreed upon in settlement was at least $2,262 more than what he would have been ordered to pay following trial. In affirming summary judgment for Defendant and holding that Plaintiff's claims of a better outcome were speculative, the Court reasoned that while a judgment in the underlying dissolution ordering Plaintiff to pay $2,262 less in spousal support was possible, it was not certain and was just one in a range of outcomes that could have occurred at trial based upon the factors the Court must consider under Family Code section 4320.

  This case clarified and upheld the requirement that in order to prevail in an action for legal malpractice, a plaintiff must prove the better result. The mere possibility of a better result is not enough to survive a motion for summary judgment; a plaintiff must show with certainty, that without any legal malpractice occurring, he would have received a more favorable settlement or outcome at trial.