Gutierrez v. Girardi: Not All Legal Malpractice Claims Involve “Case Within a Case”


It is standard thinking that evaluation and trial of a legal malpractice claim requires assessment and proof of the case within a case. The plaintiff must, in effect, try the underlying case and demonstrate that but for the attorney’s error or omission, the client would have obtained a better result. That is precisely the strategy the defendant’s attorneys pursued in Gutierrez v. Thomas Girardi, 2011 Cal. App. Lexis 492. The decision can be found here. The plaintiffs in Gutierrez alleged that the defendant attorneys misappropriated part of the settlement proceeds obtained in partial settlement of claims against Lockheed and other defendants.

The attorneys argued that the underlying claims would have been time-barred and, therefore, the plaintiffs could not prove that but for the attorneys’ alleged wrongdoing the plaintiffs would have obtained a better result; the underlying defendants would have pursued and prevailed on the time-bar defense.

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