California Civil Jury Instructions (CACI) (2017)

601. Damages for Negligent Handling of Legal Matter

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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. [Name of plaintiff]
was not harmed by [name of defendant]’s conduct if the same harm
would have occurred anyway without that conduct.
New September 2003; Revised June 2015
Directions for Use
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.” (See,
e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820,
829–830 [60 Cal.Rptr.2d 780] [trial-within-a-trial method was applied to
The plaintiff must prove that but for the attorney’s negligent acts or omissions, he
or she would have obtained a more favorable judgment or settlement in the
underlying action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d
629, 70 P.3d 1046].) The second sentence expresses this “but for” standard.
Sources and Authority
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. 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.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,
749–750 [76 Cal.Rptr.2d 749, 958 P.2d 1062].)
• “In the legal malpractice context, the elements of causation and damage are
particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574,
1582 [171 Cal.Rptr.3d 23].)
• “In a client’s action against an attorney for legal malpractice, the client must
prove, among other things, that the attorney’s negligent acts or omissions
caused the client to suffer some financial harm or loss. When the alleged
malpractice occurred in the performance of transactional work (giving advice or
preparing documents for a business transaction), must the client prove this
causation element according to the ‘but for’ test, meaning that the harm or loss
would not have occurred without the attorney’s malpractice? The answer is
yes.” (Viner, supra, 30 Cal.4th at p. 1235.)
• “[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 Inc., supra, 52
Cal.App.4th at p. 834.)
• “ ‘Damage to be subject to a proper award must be such as follows the act
complained of as a legal certainty . . . .’ Conversely, ‘ “ ‘[t]he mere probability
that a certain event would have happened, upon which a claim for damages is
predicated, will not support the claim or furnish the foundation of an action for
such damages.’ ” ’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165–166
[149 Cal.Rptr.3d 422], original italics, footnote and internal citations omitted.)
• “One who establishes malpractice on the part of his or her attorney in
prosecuting a lawsuit must also prove that careful management of it would have
resulted in a favorable judgment and collection thereof, as there is no damage
in the absence of these latter elements.” (DiPalma v. Seldman (1994) 27
Cal.App.4th 1499, 1506–1507 [33 Cal.Rptr.2d 219], original italics.)
• “ ‘The element of collectibility requires a showing of the debtor’s solvency.
“[‘W]here a claim is alleged to have been lost by an attorney’s negligence, . . .
to recover more than nominal damages it must be shown that it was a valid
subsisting debt, and that the debtor was solvent.’ [Citation.]” The loss of a
collectible judgment “by definition means the lost opportunity to collect a
money judgment from a solvent [defendant] and is certainly legally sufficient
evidence of actual damage.” ’ ” (Wise v. DLA Piper LLP (US) (2013) 220
Cal.App.4th 1180, 1190 [164 Cal.Rptr.3d 54], original italics, internal citations
• “Collectibility is part of the plaintiff’s case, and a component of the causation
and damages showing, rather than an affirmative defense which the Attorney
Defendants must demonstrate.” (Wise, supra, 220 Cal.App.4th at p. 1191.)
• “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].)
• “Where the attorney’s negligence does not result in a total loss of the client’s
claim, the measure of damages is the difference between what was recovered
and what would have been recovered but for the attorney’s wrongful act or
omission. [¶] Thus, in a legal malpractice action, if 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].)
• “[A] plaintiff who alleges an inadequate settlement in the underlying action
must prove that, if not for the malpractice, she would certainly have received
more money in settlement or at trial. [¶] The requirement that a plaintiff need
prove damages to ‘a legal certainty’ is difficult to meet in any case. It is
particularly so in ‘settle and sue’ cases . . . .” (Filbin,supra, 211 Cal.App.4th at
p. 166, original italics, internal citation omitted.)
• “In a legal malpractice action, causation is an issue of fact for the jury to
decide except in those cases where reasonable minds cannot differ; in those
cases, the trial court may decide the issue itself as a matter of law.” (Yanez v.
Plummer (2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d 309].)
• “ ‘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
• “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 (5th ed. 2008) Attorneys, §§ 319–322
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:322 (The Rutter Group)
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)