•  
  •  
 

Authors

John M. Bickers

Document Type

Article

Media Type

Text

Abstract

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.

First Page

35

Last Page

70

Publication Date

9-1-2014

Department

Other

ISSN

0734-1490

Language

eng

Publisher

Northern Illinois University Law Review

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.