SMITH V. MCLAUGHLIN, 2014 VA. LEXIS 127 (VA. SEPT. 9, 2014)
- The circuit court erred in giving opinions of the Supreme Court of Virginia to the jury for review during deliberation; this violated Va. Code § 8.01-381 and Virginia law as the cases were not exhibits, were inadmissible, and their content was confusing and unduly emphasized.
- The circuit court erred in allowing Plaintiff to ask for millions more in damages than his ad damnum during both opening statement and closing argument; permitting the excessive request was also error where the massive sum requested was not grounded in the pleadings or evidence and violated Va. Code § 8.01-379.1.
- The circuit court erred in permitting plaintiff to recover more in this action than he could have collected from the Criminal Defense Attorneys in the absence of Shevlin Smith’s alleged malpractice.
- The court erred in ruling that Virginia does not recognize “collectability” as an element of legal malpractice cases.
- The court erred in refusing [*2] to order a new trial or remittitur because Plaintiff did not carry his evidentiary burden of showing he could have collected the $5.75 million verdict amount from the Criminal Defense Attorneys but for the alleged malpractice of Shevlin Smith.
- The circuit court erred in failing to provide jury instructions that explained “collectability” and/or that proximate cause for damages in this trial required a showing that McLaughlin could have prevailed against and recovered damages from the Criminal Defense Attorneys but for Shevlin Smith’s alleged malpractice.
- The court erred in giving Instruction 8-2A which is unclear and fails to prevent Plaintiff from recovering more in this action than he could have collected from the Criminal Defense Attorneys in the absence of Shevlin Smith’s alleged malpractice.
- The court further erred in refusing Instructions C-1, C-2 and C-3.
- The circuit court erred in admitting (and refusing to strike) testimony of damages that was greatly in excess of damage figures disclosed pre-trial, where plaintiff’s damages expert increased his opinion with a spur of the moment calculation performed on the witness stand.
- The court erred where the expert’s testimony [*3] was previously undisclosed and constituted an unfair surprise that prejudiced Shevlin Smith.
- The court erred because the expert’s testimony included wages that the trial court had ruled Plaintiff could not recover.
- The circuit court erred in denying Defendant’s motion for remittitur where the verdict was far in excess of any evidence of lost income put forward at trial; the damages verdict was the product of inappropriate jury speculation, passion and prejudice; and the verdict permitted the plaintiff to inappropriately recover attorney based wages and to recover more than he could have received in the absence of the malpractice.
- The circuit court erred in denying Defendant’s post-trial motion for a new trial where Plaintiff asked for damages in excess of the ad damnum, where the verdict bore no relation to the evidence and was the product of inappropriate speculation, passion and prejudice (as well as improper expert testimony), where Plaintiff failed to show collectability and where the jury was inappropriately given legal cases for deliberations.
- The circuit court erred in denying Defendant’s second plea in bar, and by rejecting Shevlin Smith’s position that an attorney [*4] does not commit malpractice, as a matter of law, by failing to anticipate a change or shift in the law or by exercising judgment on an unsettled point.
Assignments of Cross-Error
- The trial court abused its discretion in denying McLaughlin’s request to increase the ad damnumbecause his motion was timely filed.
- The court abused its discretion in denying the request to increase the ad damnumwhen it considered Shevlin’s liability coverage.
- The trial court erred as a matter of law when it determined that non-economic damages were unavailable to McLaughlin.
- The trial court erred as a matter of law in ruling that pain and suffering is not available in a contract action.
- The trial court abused its discretion in not considering whether wrongful incarceration damages were available prior to making its determination on the motion to increase the ad damnumclause.
- The trial court erred as a matter of law in ruling that wrongful incarceration damages are not available in a legal malpractice action.
- The court erred in excluding from the damage calculation the time McLaughlin was incarcerated for an escape attempt.
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