California Civil Jury Instructions (CACI)
600. Standard of Care
[A/An] [insert type of professional] is negligent if [he/she] fails to use the skill and care that a reasonably careful [insert type of professional] would have used in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.”
[You must determine the level of skill and care that a reasonably careful [insert type of professional] would use in similar circumstances based only on the testimony of the expert witnesses[, including [name of defendant],] who have testified in this case.]
New September 2003; Revised October 2004, December 2007
Directions for Use
Use this instruction for all professional negligence cases other than professional medical negligence, for which CACI No. 501, Standard of Care for Health Care Professionals, should be used. See CACI No. 400, Negligence—Essential Factual Elements, for an instruction on the plaintiff’s burden of proof. The word “legal” or “professional” should be added before the word “negligence” in the first paragraph of CACI No. 400. (See Sources and Authority following CACI No. 500, Medical Negligence—Essential Factual Elements.)
Read the second paragraph if the standard of care must be established by expert testimony.
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses. If the defendant is a specialist in his or her field, this instruction should be modified to reflect that the defendant is held to the standard of care of a specialist. (Wright v. Williams (1975) 47 Cal.App.3d 802, 810 [121 Cal.Rptr. 194].) The standard of care for claims related to a specialist’s expertise is determined by expert testimony. (Id. at pp. 810–811.)
Whether an attorney-client relationship exists is a question of law. (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756].) If the evidence bearing upon this decision is in conflict, preliminary factual determinations are necessary. (Ibid.) Special instructions may need to be crafted for that purpose.
Sources and Authority
- The elements of a cause of action in tort for professional negligence are “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433]; Carlton v. Quint (2000) 77 Cal.App.4th 690, 699 [91 Cal.Rptr.2d 844].)
- “ ‘In addressing breach of duty, “the crucial inquiry is whether [the attorney’s] advice was so legally deficient when it was given that he [or she] may be found to have failed to use ‘such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.’ . . .” . . . ” ’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
- “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
- “It is well settled that an attorney is liable for malpractice when his negligent investigation, advice, or conduct of the client’s affairs results in loss of the client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218 Cal.Rptr. 313, 705 P.2d 886].)
- “The standard is that of members of the profession ‘in the same or a similar locality under similar circumstances’. . . . The duty encompasses both a knowledge of law and an obligation of diligent research and informed judgment.” (Wright, supra, 47 Cal.App.3d at p. 802, internal citations omitted; but see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d 707] [geographical location may be a factor to be considered, but, by itself, does not provide a practical basis for measuring similar circumstances].)
- Rules of Professional Conduct, rule 3-110 (Failing to Act Competently) provides:
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
(B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.
(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.
- Lawyers who hold themselves out as specialists “must exercise the skill, prudence, and diligence exercised by other specialists of ordinary skill and capacity specializing in the same field.” (Wright, supra, 47 Cal.App.3d at p. 810.) The standard of care for claims related to a specialist’s expertise is determined by expert testimony. (Id. at pp. 810–811.)
- If the failure to exercise due care is so clear that a trier of fact may find professional negligence without expert assistance, then expert testimony is not required: “ ‘In other words, if the attorney’s negligence is readily apparent from the facts of the case, then the testimony of an expert may not be necessary.’ ” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 [41 Cal.Rptr.2d 768], internal citations omitted.)
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 290–293
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 593
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 990, 991, 994–997
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 1-A, Sources Of Regulation Of Practice Of Law In California-Overview, ¶ 1:39 (The Rutter Group)
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-D, Professional Liability, ¶¶ 6:230–6:234 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31 (Matthew Bender)
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of Professionals, §§ 30.12, 30.13, Ch. 32, Liability of Attorneys, § 32.13 (Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, §§ 76.50, 76.51 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.50 (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice, § 24A.20 et seq. (Matthew Bender)