Timber Trespass Malpractice Claim Survives

Summary judgment was properly granted to a law firm but not the individual attorney sued for legal malpractice, according to a decision of the New Hampshire Supreme Court.

This is the second appeal of this case and many of the underlying facts and procedural history are set forth in our prior decision, Yager v. Clauson, 166 N.H. 570 (2014). The client’s legal malpractice claim stems from the defendants’ representation of him in two timber trespass actions. See id. at 571. The first action was brought against Mighty Oaks Realty, LLC (Mighty Oaks) in 2007 (the Mighty Oaks action). Id. Summary judgment was granted to Mighty Oaks, in part, because the client failed to prove that Mighty Oaks was the entity that cut the timber. Id.

The second action was brought against D.H. Hardwick & Sons, Inc. (Hardwick) in 2008 (the Hardwick action). Id. In that action, the client alleged that Hardwick was the entity that cut the timber. Id. Summary judgment was granted to Hardwick because the action had been filed more than three years after the timber cutting had ceased and, thus, was barred by the applicable statute of limitations. Id. We affirmed the trial court decisions in both actions. Id.

 Here

In this case, the trial court concluded that a legal expert was necessary for the plaintiff to prove “what result should have occurred” had the Hardwick action been timely filed. Carbone, 151 N.H. at 528 (quotation and ellipsis omitted). The client argues that this was error because he could have used the “trial-within-a-trial” method to prove this. We hold that, to the extent that the trial court determined that the trial-within-a-trial method was unavailable to the client, as a matter of law, the trial court erred. See McIntire v. Lee, 149 N.H. 160, 165-66 (2003); Witte v. Desmarais, 136 N.H. 178, 189 (1992).

Recreating the underlying case is “[t]he traditional means of resolving what should have happened” had an attorney’s negligence not occurred. Mallen & Smith, supra § 33:3, at 626; see Garcia v. Kozlov, Seaton, Romanini, 845 A.2d 602, 611-12 (N.J. 2004). “Recreating the underlying action requires calling and examining those persons who would have been witnesses and presenting the demonstrative and documentary evidence that would have been presented but for the attorney’s negligence.” Mallen & Smith, supra § 37:15, at 1510. “This process then becomes in essence a trial within a trial.” Witte, 136 N.H. at 189; see McIntire, 149 N.H. at 165; see also Mallen & Smith, supra § 37:15, at 1511. In the “trial within a trial,” the jury in the legal malpractice action “substitute[s] itself as the trier of fact” in the underlying action and “determine[s] the factual issues presented on the same evidence that should have been presented to the original trier of fact.” McIntire, 149 N.H. at 165 (quotation omitted). The trial-within-a-trial approach is “regularly employed in most jurisdictions” in legal malpractice cases, Garcia, 845 A.2d at 612, and has been employed in New Hampshire, see McIntire, 149 N.H. at 165-66; Witte, 136 N.H. at 188-89…

Here, to the extent that the trial court ruled that the client could not use the trial-within-a-trial method to prove “what result should have occurred” had the Hardwick action been timely filed, the trial court erred. Carbone, 151 N.H. at 528 (quotation and ellipsis omitted). This method was an acceptable means of proving proximate cause in the client’s legal malpractice claim. See McIntire, 149 N.H. at 165-66.

 The law firm was dismissed due to the plaintiff’s discovery lapse. (Mike Frisch)