Recently, Mariana D. Bravo and Matthew D. Berkowitz were victorious in defending an attorney-client at both the trial level and at the appellate level. The appellant sued the attorney-client for legal malpractice in the Superior Court for the District of Columbia, alleging that the attorney-client breached the standard of care by failing to raise her constructive discharge claim on appeal at the Court of Appeals for the D.C. Circuit. The appellant’s underlying appeal followed the D.C. District Court’s entry of summary judgment against her on a myriad of employment discrimination claims.
In the present legal malpractice action, Ms. Bravo and Mr. Berkowitz first won summary judgment on behalf of their client at the Superior Court. The Superior Court ruled that the appellant could not establish causation as a matter of law. On Appeal, based upon the arguments presented by Ms. Bravo and Mr. Berkowitz, the D.C. Court of Appeals affirmed, holding that the appellant could not establish causation, or “the case within the case.” Of significance, the D.C. Court of Appeals clarified the standard to be used when examining the “the case with the case” when the underlying case involves an appeal. Instead of the Court of Appeals determining whether a question of fact existed at the trial court to preclude summary judgment, the Court of Appeals ruled that its inquiry is whether it is more likely than not that the appellant would have prevailed on her appeal on the constructive discharge claim before the D.C. Circuit. The Court of Appeals panel therefore stepped into the shoes of the D.C. Circuit judges, reviewing the District Court’s judgment de novo and limiting the record to only that which was before the D.C. Circuit. The Court found that there was no genuine dispute that the appellant was not constructively discharged and concluded that the D.C. Circuit would not have found in favor of the appellant had the attorney-client raised the appellant’s constructive discharge claim on appeal.