Professional Negligence Law Reporter

The Eighth Circuit Court of Appeals held that a legal negligence plaintiff may recover corrective legal fees, even absent a final judgment in the underlying case.

Gerber Products Co. retained Mitchell Williams Selig Gates & Woodyard, PLLC, to defend the company in a lawsuit. After Gerber produced thousands of documents, the firm was notified that some of the documents were privileged. Discovery continued, and opposing counsel successfully argued that Gerber had waived its attorney-client privilege by producing privileged documents. Gerber then fired the firm, hired new counsel, and sued the firm for legal negligence before trial in the underlying case was set to begin. The court granted summary judgment for the firm, finding there was no way for the plaintiff to show that the result in the underlying action would have been different.

Reversing, the Eighth Circuit found that to prevail in a legal negligence case, a plaintiff must establish an unbroken causal chain between an attorney’s negligence and the alleged injury. The court noted that here, there is no case within a case because the plaintiff’s theory has nothing to do with how the underlying case would have turned out. Instead, the court said, the plaintiff seeks to recoup the more than $75,000 it spent trying to regain its attorney-client privilege after the defendant allegedly waived this during the underlying litigation. Citing case law, the court found that the plaintiff will have to show that the defendant’s negligence led to the extra legal fees in a natural and continuous sequence. To prove causation and damages, the plaintiff may also demonstrate that it would not have incurred the fees absent the defendant’s negligence. Corrective fees are available even absent an underlying judgment, the court found.

Consequently, the court remanded.

Citation: Gerber Prods. Co. v. Mitchell Williams Selig Gates & Woodyard, PLLC, 28 F.4th 870 (8th Cir. 2022).

Plaintiff counsel: Timothy O. Dudley, Little Rock, Ark.