Opinion: Legal Malpractice Damages
Shoemake v. Ferrer, No. 81812-6. Attorney Douglas Ferrer badly mishandled Andrea and Keith Shoemake's lawsuit related to Andrea Shoemake's serious injuries from a 1992 automobile accident. As a result of his legal malpractice, the case was dismissed in 1996. Ferrer mislead the Shoemake's about this until 2005. The Shoemake's retained another attorney and eventually recovered a $100,000 insurance settlement and then prevailed in a legal 
malpractice suit against Ferrer. The trial court awarded the Shoemake's ten years of interest on $60,000, which was the amount of the insurance settlement minus the 40% contingency fee that Ferrer would have received.
The Shoemake's appealed and the Court of Appeals found that the interest should have been based on the full $100,000. Today, in an opinion written by Justice Stephens, the Supreme Court unanimously upholds that decision.
We affirm the Court of Appeals and follow the approach favored by the majority of jurisdictions. In this case, calculating damages without deducting a negligent attorney's hypothetical contingency fee is an appropriate measure of damages. The Shoemakes had to expend fees on a second lawyer in order to finish the job the first lawyer neglected to do. The majority approach makes the plaintiffs whole without conferring a windfall.
The decision is unanimous, and the opinion, written by Justice Stephens, includes a summary of the history of the Jones Act. On the jury trial question, the Ninth Circuit and California have held that the Jones Act grants plaintiffs "a substantive federal right to elect the mode of trial," while the Fifth and Seventh Circuits, Louisiana, and California, have found that while the plaintiff can choose "the jurisdictional basis of trial (in admiralty vs. at law) ... jury trial rights flow from this election as procedural incidents." While the trial court adopted the Ninth Circuit position, the State Supreme Court today sides with the Fifth and Seventh Circuits.
