Legal malpractice cases are difficult to litigate. Not only are you facing a defendant that understands how litigation works; but, you also must establish that the attorney’s negligence caused the damages the plaintiff sustained. This is particularly difficult if the legal malpractice claim is based on the mishandling of litigation because you must litigate two cases within one: 1. the legal malpractice claim; and 2. the underlying case. Therefore, it is critical to review whether the underlying case has merit before filing a legal malpractice action regardless of whether the handling attorney breached their duty of care. Simply put, you can have great breach of duty facts against an attorney – i.e. blown statute – but, if the underlying case has no merit, then there is no legal malpractice case.
Brummel v. Grossman, provides an example of how proximate cause issues may arise in prosecuting a legal malpractice claim based upon the handling of prior litigation. 2018 IL App (1st) 170516 (1st Dist. 2018). There, in 2001, Bruce Brummel had been employed by Nicor Gas (“Nicor”) and had complained to it that he and some of his co-workers had felt ill with symptoms of vomiting, diarrhea, abdominal pain, and fatigue. Due to his symptoms, Brummel visited a physician who opined that his symptoms were caused by the ingestion of chemicals. From 2001 through 2003, Brummel and several of his colleagues voiced their concerns to Nicor that the drinking water was contaminated at the facility they worked at, but Nicor took no corrective action. Later in 2003, a City of Aurora inspector visited the site and concluded that the drinking water was contaminated with methylene chloride and/or dichloro methane. Which cause the symptoms Brummel complained he and his co-workers were experiencing.
Brummel went on medical leave around this time, and Nicor placed him on short-term disability, as well. However, Brummel was required to provide evidence of his disability to Nicore to remain at the company. Nicor sent Brummel several letters requesting medical documentation for his leave of absence, but he failed to comply with them on a timely basis. As a result, after his right to a leave of absence under the Family and Medical Leave Act had expired, Nicor terminated Brummel in 2004.
Later in 2004, Brummel applied for disability from the Social Security Administration representing that he was disabled. He was successful in the disability proceedings. In 2006, Brummel filed a workers’ compensation claim against Nicor arguing that he became disabled as a result of the exposure to the contaminated water at Nicor’s facility. That claim was inevitably settled for $125,000, and the settlement order stated that Brummel claimed that he was unable to work because of an injury to his whole body, which rendered him permanently and totally disabled.
In 2009, Brummel hired the defendants to bring claims against Nicor for retaliatory discharge and a violation of the Whistleblower Act, alleging that his employment was terminated due to his reporting of the contaminated water to various agencies. In 2013, Brummel was deposed in the discharge case and he testified that he had not searched for work after his leave of absence in 2003, that he did not provide Nicor medical documentation to support his leave, that during the Social Security proceedings he was adjudicated as disabled, and that he agreed with those findings.
Nicor then proceeded to file a motion for summary judgment arguing that Brummel was unable to prove that Nicor discharged him for his protected activities, and instead Nicor discharged him because he was unable to work due to his disability. Brummel’s attorneys failed to brief the issue or appear at the hearing. Unsurprisingly, the motion was granted.
A legal malpractice action then followed, wherein Brummel claimed that the handling attorneys of the whistleblower cased breached their duty by failing to conduct discovery adequately, respond to requests to admit, and failed to brief or argue the motion for summary judgment which led to the case being dismissed. Some of these omissions are serious enough to give rise to breaches of duty to sustain a valid claim of legal malpractice. But, the flaw in Brummel’s case was whether these errors were the reason his claim was dismissed.
The defendant attorneys moved for summary judgment on the basis that Brummel could not prove that his attorney’s negligence was the only reason he lost his case. Specifically, they argued he lost his case because he had acknowledged that he was disabled in the other proceedings which therefore cut the legs out from his retaliatory discharge and whistleblower case. Nor was Brummel able to argue that he was not disabled now in his new case under the doctrine of judicial estoppel because such statements would be directly contradictory to the ones he made in his disability and worker’s compensation proceedings.
Brummel illustrates why due diligence before bringing a legal malpractice case is critical. If the case relates to the handling of litigation, prior deposition transcripts, affidavits, pleadings, and sworn testimony must be reviewed. Otherwise you may be walking into a minefield of proximate cause arguments that the underlying litigation was doomed without the negligent attorney’s involvement anyway.
Alex Passo is an attorney at Latimer LeVay Fyock who handles legal malpractice cases throughout Illinois and Indiana. If you have a matter you would like to discuss with him, you can reach him at (312) 422-8000 or apasso@llflegal.com.
