Court reiterates that Pennsylvania does not recognize the “increased risk of harm” doctrine in legal malpractice cases.

The United States District Court for the Eastern District of Pennsylvania reiterated that Pennsylvania does not recognize the “increased risk of harm” doctrine in legal malpractice cases. The District Court held, “[t]o prove actual loss, Nkansah must establish that he would have, not could have, been successful in the underlying action but for the defendants’ malpractice. An increased risk of harm standard does not apply in a legal malpractice case. It does not satisfy the actual loss element.”

Nkansah claimed that his former attorneys did not diligently pursue discovery in his underlying lawsuit in which he claimed he was defrauded in connection with an investment. Nkansah retained an expert witness in his legal malpractice case who opined that Nkansah could have prevailed in the underlying lawsuit had his attorneys properly pursued discovery. The District Court held that such testimony was insufficient because Nkansah bore the burden of demonstrating that he would have prevailed in the underlying lawsuit but for his attorneys’ negligence.

Some jurisdictions do recognize the “increased risk of harm” doctrine and permit a plaintiff to proceed in a legal malpractice matter if the plaintiff can demonstrate that his attorneys’ negligence increased his risk of harm, even if the plaintiff cannot demonstrate that his attorneys’ negligence caused a judgment to be lost. For example, in those jurisdictions, a jury is permitted to find an attorney liable based on evidence reflecting that the plaintiff might have prevailed in the underlying matter, or that the plaintiff could have obtained a settlement in the underlying matter. Pennsylvania, however, continues to require that a legal malpractice plaintiff demonstrate that his attorneys’ negligence actually caused him to lose a judgment in the underlying lawsuit.

^{Case Law Alerts, 3rd Quarter, July 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}