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Which Court Decides,Federal v. State? Jurisdiction Over Legal Malpractice Claims Arising From Patents

In order to prove a claim of legal malpractice, a plaintiff, no differently than in other cases alleging negligence, must prove the existence of a duty, breach of that duty, and proximately caused damages. These are fundamentally state tort law issues. In legal malpractice cases, the causation element normally requires the plaintiff to prove what would have happened if the attorney had not breached the applicable standard of care in representing his client. When the legal representation concerned matters of federal law, which, standing alone, would have been subject to federal court jurisdiction, an issue that presents itself in a subsequent legal malpractice case is whether the legal malpractice action, too, is subject to federal jurisdiction. This issue has received increased attention recently, particularly as a result of two 2007 decisions by the United States Court of Appeals for the Federal Circuit. This article discusses how the federal jurisdiction issue has been evolving in the context of legal malpractice cases arising from patent-related representation.