Malpractice Claim Requires Proof of Damages

It is black-letter law that every actionable malpractice claim requires proof of actual damage proximately caused by counsel’s negligence. Breaches of the standard of care are not per se actionable. Acts of negligence, without damages, are what Cardozo famously described as “negligence in the air.” As has been restated countless times, “[t]he breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action. …” This point brutally (from the plaintiff ’s standpoint) or gloriously (from the defendant lawyer’s standpoint) was illustrated recently when an appellate court reversed a $574,000 verdict against a defendant lawyer based upon the premise that the proof of actual damages was, at best, pure speculation.

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Jeffrey P. Lewis

Member - Philadelphia