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The “case-within-a-case” structure of a legal malpractice case often makes litigating such disputes seem a bit like a law school problem gone awry. However, “reverse bifurcation” is a means to remedy the confusion and enable both the court and parties to efficiently and neatly segregate the issues for introduction to the jury. In order for plaintiffs to recover damages in a legal malpractice action, they must successfully prove the “case-within-a-case” to establish that the legal malpractice proximately cause the alleged damages. That is, a plaintiff must prove that he would have been successful in his underlying claims had it not been for the defendant’s alleged legal malpractice. This essentially requires two mini-trials. Pursuant to Practice Book � 15-1 and Conn. Gen. Stat. � 52-205, the bifurcation or segregation of issues at trial is a matter of judicial discretion and permits a court to order that one or more of the issues in a case be tried separately from the others. According to the Supreme and Appellate Courts in Reichhold Chemicals, Inc. v. Hartford Accident and Indemnity Company and O’Shea v. Mignone, in determining whether bifurcation is appropriate, the issues of convenience, negation of prejudice and judicial efficiency should be considered. Bifurcation also may be appropriate in cases in which litigation of one issue may obviate the need to litigate other issues in the case. Bifurcation is frequently sought in tort cases where the issue of liability might be relatively straightforward, but the damages aspect of a case may require extensive and expensive expert testimony. In that circumstance, a party may request that liability be litigated prior to and separately from the issue of damages. If the jury returns a verdict in favor of the defendant as to liability, then neither party has incurred the expense of the ultimately moot expert damages testimony, and the court has conserved a significant amount of its time in conducting the trial. However, this classic bifurcation of liability before damages does not best address the concerns of convenience, negation of prejudice and judicial efficiency in legal malpractice litigation. Given the “case-within-a-case” structure of a legal malpractice case, the non-traditional approach of “reverse bifurcation” may simplify an otherwise confusing configuration. As used in the context of a legal malpractice case, reverse bifurcation means that the damages element of a plaintiff’s legal malpractice claim, i.e., the liability component of the claims against the underlying defendant, be litigated first. There is good reason why reverse bifurcation allows for the presentation of a plaintiff’s claims in a logical, cost-effective progression. Without having first prevailed in its underlying claims against the underlying defendant, a plaintiff, as a matter of law, cannot prove the causation and damage elements of its legal malpractice case. Consequently, further proceedings against the legal malpractice defendants become unnecessary, and the trial is truncated. It also avoids the jury from simultaneously hearing evidence about the underlying claims and the current legal malpractice claims, and potentially confusing and commingling the issues. While there are no reported cases in which reverse bifurcation has been addressed, Cramer, Alissi & Fontaine recently represented a defendant in a legal malpractice case where our request for reverse bifurcation was granted. The matter involved a claim for legal malpractice by a plaintiff against his former attorneys alleging that, as a result of their legal malpractice, the plaintiff was prevented from bringing a wrongful death lawsuit against New York medical practitioners who rendered medical care to his wife prior to her death. Given these and other facts, litigation of the underlying medical malpractice claims required fewer expert witnesses and ultimately less trial time than did the legal malpractice liability and damage components of that trial. There were a significant number of legal issues, primarily choice of law questions regarding liability and damages, that impacted adjudication and proof of the legal malpractice phase of the case. Although the case ultimately settled, by applying reverse bifurcation, these complex legal issues did not need to be considered unless the case-within-a-case was proven. Thus, the decision to reverse bifurcate the trial best served the interests of judicial efficiency, negation of prejudice, and convenience to the parties. To be sure, reverse bifurcation is not a traditional approach to litigation. The notion of litigating the issue of damages prior to and separate from liability is often unappealing to most litigators, especially defense counsel. That said, in the context of legal malpractice litigation, reverse bifurcation is an approach that can help the parties and the court streamline the litigation and conserve precious judicial resources. Christopher J. Sochacki is an attorney at Cramer, Alissi & Fontaine (www.cafpc.com) in Hartford. Craig Fontaine, a principal of the firm, assisted in preparing this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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