dissenting.
{¶ 31} I agree with the majority opinion’s conclusion that “in holding that not every malpractice case will require that the plaintiff establish that he would have succeeded in the underlying matter, the Vahila [v. Hall (1997), 77 Ohio St.3d 421, 674 N.E.2d 1164] court necessarily implied that there are some cases in which the plaintiff must so establish.” (Emphases sic.) Majority opinion at ¶ 17. The *216syllabus law goes too far, however, essentially requiring proof of a case within a case whenever a plaintiff agrees to a settlement and then alleges attorney malpractice in the underlying case. I believe it is possible for legal malpractice to be so egregious that proof of a case within a case would be unnecessary. This case, in which the attorneys steadfastly refused to continue with trial despite their clients’ sincere desire to continue, may be such a case.
Levin & Associates Co., L.P.A., Joel Levin, Aparesh Paul, and Christopher M. Vlasich; and James M. Wilsman Co., L.P.A., and James M. Wilsman, for appellees. Ross, Dixon & Bell, L.L.P., and Richard A. Simpson; and Gallagher Sharp and Monica A. Sansalone, for appellant. Tucker, Ellis & West, L.L.P., Richard A. Dean, Irene C. Keyse-Walker, and Benjamin C. Sasse, urging reversal for amicus curiae Defense Research Institute. Reminger & Reminger Co., L.P.A., Amy S. Thomas, and Nicholas Satullo, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.{¶ 32} It is not necessary to go that far, however, because given the procedural posture of this case, the appellees, Environmental Network Corporation, Environmental Network and Management Corporation, and John J. Wetterich (collectively “ENC”), need establish only that there was sufficient evidence to defeat a motion for judgment notwithstanding the verdict. I dissent because I believe that the evidence in this case, when construed most strongly in favor of ENC, is sufficient to defeat a motion for judgment notwithstanding the verdict.
{¶ 33} The majority opinion hangs on a thin thread, that ENC did not present “any evidence as to whether [ENC] would have had a better outcome had the matter gone to trial,” majority opinion at ¶ 25. This assertion is patently untrue. ENC presented ample evidence of the losses it suffered (the breach by Waste Management of Ohio is manifest), which in aggregate exceeded the claims against ENC. The jury was instructed that “[t]he damages recoverable in a legal malpractice action cannot be remote or speculative.” The jury reviewed the evidence before it and determined that ENC had suffered significant losses, and it therefore awarded significant damages. How much more does ENC have to prove? See Barton, Do Judges Systemically Favor the Interests of the Legal Profession? (2008), 59 Ala.L.Rev. 453.
{¶ 34} Like the jury, the trial court, and the court of appeals, I believe that ENC produced, at a minimum, enough evidence to defeat a motion for judgment notwithstanding the verdict. I would affirm the judgment of the court of appeals. Accordingly, I dissent.
Baker & Hostetler, L.L.P., and Wayne C. Dabb Jr., urging reversal for amici curiae Ohio Bar Liability Insurance Company and ProAssurance Corporation.