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West Virginia Law Review

Document Type

Article

Abstract

The law today, it would seem, has become, like most professions and sciences a creature of specialization. Not many years ago most practitioners of the law in this country would have considered the general field of negligence a somewhat limited subject. But today, even this small segment of the vast science of law must be divided and subdivided, each individual subdivision being guided by its own special set of rules. Because of this transition from the general to the special, any paper of this sort must be strictly limited in scope. Even the seemingly narrow subject of "attorney negligence” would be entirely too broad to be covered in anything short of book-length proportions, and, hence, this dissertation will be limited to only a single class of attorney negligence cases. Simply stated, it is here the intention to deal only with the problems arising in a suit against an attorney by his own client, where that attorney, through his own negligence or inaction, has allowed his client's cause of action to become barred by the statute of limitations. Basically, two broad areas of inquiry will be discussed. First, there is the problem of whether such an action sounds in tort or is based upon the express or implied contract between the attorney and his client. As will be seen, the rules which have been applied to this problem are vague and ill-defined by the courts, and universal propositions of law are almost impossible to make because of the conflicts which exist. Secondly, the pivotal question of damages will be discussed. How much should be assessed in damages? What should be the method of determining these damages? The answer to these questions must eventually involve a suit within a suit. That is, the client's original cause of action which has been lost must be, in effect, tried in the suit against the attorney.

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