Typically, a plaintiff in a legal malpractice suit must prove by a preponderance of evidence that but for the attorney's alleged negligence, the client would have obtained a more favorable result in his underlying lawsuit. This so-called "suit within a suit" requirement forces the plaintiff to prove his underlying case in order to recover from the defendant attorney for mishandling it. This requirement can operate harshly against the plaintiff, especially when the attorney's own negligence makes evidence unavailable to the plaintiff and thereby makes proof of the underlying case by the client difficult or impossible. This Note proposes that the development of a new tort in California, negligent spoliation of evidence, may provide a useful alternative to the traditional legal malpractice claim in this situation, since it frees the plaintiff from the need to prove the merit of the underlying suit. After examining the evolution of the negligent spoliation tort, this Note explores some of the problems that aggrieved clients may have in applying the tort against negligent attorneys. Although the use of the negligent spoliation of evidence tort has not yet been applied in the attorney-client context, the tort may prove to be a viable remedy for clients who are unable to meet the "suit within a suit" requirement of legal malpractice claims.
Paul Gary Kerkorian,
Negligent Spoliation of Evidence: Skirting the Suit within a Suit Requirement of Legal Malpractice Actions,
41 Hastings L.J. 1077
Available at: https://repository.uchastings.edu/hastings_law_journal/vol41/iss4/5