By Codie J. Ross, Guest Contributor (Reminger Attorneys at Law)

In Indiana, the “trial within a trial” doctrine governs claims of legal malpractice. Under that doctrine, to prove proximate causation, a plaintiff alleging malpractice must show that the outcome of the underlying litigation would have been more favorable had the lawyer not been negligent. The Indiana Court of Appeals recently reaffirmed the application of this doctrine—finding that an Indiana law firm was not responsible for its client’s purported “lost opportunity” when it failed to file a required Notice of Tort Claim.

In 2013, Lucy Mundia’s husband Edward Mwuara had been arrested on suspicion of violating a protective order against Mundia’s 6-year-old daughter, Shirley. However, when Mr. Mwuara was arrested, authorities misspelled his name, and when a deputy prosecutor checked the protective order registry under the misspelled name, she found no active order. Thus, Mr. Mwuara was released, and subsequently attacked his wife and daughter, killing the girl.

When you’re a member of Alta Pro Lawyers RPG, you get instant access to malpractice prevention experts like Codie J. Ross. They’re part of our claim avoidance and repair program. Learn how to join here.

Mundia hired the Drendall Law Office to represent her in a potential negligence suit against the city of South Bend and St. Joseph County, but the firm failed to file the requisite Indiana tort claim notice, thus barring Mundia’s claims. Mundia filed a legal malpractice action against the firm.  A trial was eventually had, and a jury returned a verdict in Mundia’s favor. 

Mundia’s primary argument was that the law firm’s error prevented her from obtaining a settlement with the public entities.  However, the law firm presented expert testimony that a public entity would not have settled a case such as Mundia’s when it so clearly enjoyed statutory immunity (as the public entities did in this matter).   Mundia provided no expert testimony to the contrary.  The firm relied upon Mundia’s lack of expert when it filed its motion on the evidence, which was denied by the trial court. 

The matter was very recently undertaken by the Court of Appeals in Drendall Law Office, P.C. v. Lucy Mundia, 19A-PL-582.  After considering evidence presented at trial, the appellate court found that the jury’s verdict in Mundia’s favor was clearly erroneous because there was insufficient evidence to prove that the law firm’s failure to file a tort claim notice proximately caused Mundia to lose the opportunity to settle with the city or county.

In its finding, the Court stated, “Although Mundia’s evidence suggests the possibility of a settlement was not completely foreclosed, there was no substantial evidence or reasonable inference from the evidence that it was probable she would have obtained a settlement under these circumstances,” the Court wrote in its reversal. “In other words, Mundia’s evidence may have proved that she could have gotten a settlement, but it did not prove that she would have.”

The Court went on to state, “Although the facts of this case are undeniably tragic and Mundia has unquestionably suffered harm, the law and the evidence in this case do not support her claim for relief. Mundia has failed to present sufficient, probative evidence on a necessary element of her legal malpractice claim, and therefore the jury’s verdict in her favor ‘is wholly unwarranted,’” it concluded.

The decision makes for a solid examination of the importance of the element of causation when it comes to legal malpractice claims.  If you have any questions regarding this or other professional liability matters, please contact any member of our Legal Professional Liability Practice Group.

_{This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.}

This article originally appeared in the January 17, 2020 Reminger Reports.

Reminger’s risk prevention hotline is just one of the many benefits of being insured with Alta Pro. Have you logged onto the Alta Pro Lawyers RPG website, so you can start taking advantage of our practice resources? If not, get started here!

About the Author

Codie Ross practices in Reminger’s Fort Wayne office. He is a tested trial attorney with years of courtroom experience, and has defended clients in general casualty, professional liability, construction liability, premises liability, personal injury, and wrongful death cases. Codie’s expertise also includes bail bond and surety law, education law, and general insurance defense.