California Civil Jury Instructions (CACI)

601. Damages for Negligent Handling of Legal Matter

To recover damages from [name of defendant], [name of plaintiff] must prove that [he/she/it] would have obtained a better result if [name of defendant] had acted as a reasonably careful attorney.

New September 2003

Directions for Use

In Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820 [60 Cal.Rptr.2d 780], the trial-within-a-trial method was applied to accountants. In cases involving professionals other than attorneys, this instruction would need to be modified by inserting the type of the professional in place of “attorney.”

The issue of collectibility does not apply to every legal malpractice action: “It is only where the alleged malpractice consists of mishandling a client’s claim that the plaintiff must show proper prosecution of the matter would have resulted in a favorable judgment and collection thereof.” (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506 [33 Cal.Rptr.2d 219].)

Sources and Authority

  • “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citations.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433]; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749–750 [76 Cal.Rptr.2d 749, 958 P.2d 1062].)

  • The trial-within-a-trial method “is the most effective safeguard yet devised against speculative and conjectural claims in this era of ever expanding litigation. It is a standard of proof designed to limit damages to those actually caused by a professional’s malfeasance.” (Mattco Forge, supra, 52 Cal.App.4th at p. 834.)
  • “For the reasons given above, we conclude that, just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [135 Cal.Rptr.2d 629, 70 P.3d 1046], original italics.)
  • To prove damages in a legal malpractice action, plaintiff must show the probable value of the lawsuit that he or she has lost. Plaintiff must also prove that careful management of his or her claim would have resulted in a favorable judgment and collection of it. (Campbell v. Magana (1960) 184 Cal.App.2d 751, 754 [8 Cal.Rptr. 32].) There is no damage in the absence of these latter elements. (DiPalma, supra, 27 Cal.App.4th at pp. 1506–1507.)
  • “Because of the legal malpractice, the original target is out of range; thus, the misperforming attorney must stand in and submit to being the target instead of the former target which the attorney negligently permitted to escape. This is the essence of the case-within-a-case doctrine.” (Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 231 [60 Cal.Rptr.2d 495].)
  • The measure of damages in a case predicated on legal malpractice “is the difference between what was recovered and what would have been recovered but for the attorney’s wrongful act or omission. . . . [I]f a reasonably competent attorney would have obtained a $3 million recovery for the client but the negligent attorney obtained only a $2 million recovery, the client’s damage due to the attorney’s negligence would be $1 million—the difference between what a competent attorney would have obtained and what the negligent attorney obtained.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1758 [30 Cal.Rptr.2d 217].)
  • “ ‘The trial-within-a-trial method does not “recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done . . . .” . . . Even though “should” and “would” are used interchangeably by the courts, the standard remains an objective one. The trier of fact determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury. . . .” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710], original italics.)
  • “If the underlying issue originally was a factual question that would have gone to a tribunal rather than a judge, it is the jury who must decide what a reasonable tribunal would have done. The identity or expertise of the original trier of fact (i.e., a judge or an arbitrator or another type of adjudicator) does not alter the jury’s responsibility in the legal malpractice trial-within-a-trial.” (Blanks, supra, 171 Cal.App.4th at pp. 357-358.)

Secondary Sources

1 Witkin, California Procedure (4th ed. 1996) Attorneys, § 338

3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.10 et seq. (Matthew Bender)

7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability, § 76.50 et seq. (Matthew Bender)

2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice, § 24A.20 et seq. (Matthew Bender)