CACI No. 601. Legal Malpractice - Causation

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
601.Legal Malpractice - Causation
To recover damages from [name of defendant], [name of plaintiff] must
prove that [he/she/nonbinary pronoun/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, May 2020, December 2022
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 accountants].)
The plaintiff must prove that but for the attorney’s negligent acts or omissions, 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].) 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.)
“[W]hen an attorney breaches the duty of care by failing to advise the client of
reasonably foreseeable risks of litigation before a complaint is filed, the client
need not prove the subsequently filed litigation would have been successful to
establish the causation element of his professional negligence claim. Rather, the
client can demonstrate he ‘would have obtained a more favorable result’, by
proving that, but for the attorney’s negligence, he would not have pursued the
litigation and thus would not have incurred the damages attributable to the
foreseeable risks that the attorney negligently failed to disclose. In other words,
to answer the ‘crucial causation inquiry’ articulated in Viner - ‘what would have
happened if the defendant attorney had not been negligent’ - the client may
respond with evidence showing he would not have filed the litigation in the first
place and he would have been better off as a result.” (Mireskandari v. Edwards
Wildman Palmer LLP (2022) 77 Cal.App.5th 247, 262 [292 Cal.Rptr.3d 410],
internal citations omitted.)
‘The element of collectibility requires a showing of the debtors 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 omitted.)
“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.)
“[W]e conclude the applicable standard of proof for the elements of causation
and damages in a ‘settle and sue’ legal malpractice action is the preponderance
of the evidence standard. First, use of the preponderance of the evidence
standard of proof is appropriate because it is the ‘default standard of proof in
civil cases’ and use of a higher standard of proof ‘occurs only when interests
‘more substantial than mere loss of money’ are at stake.’ (Masellis v. Law
Offıce of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092 [264 Cal.Rptr.3d
“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].)
“For purposes of determining whether a more favorable outcome would have
been obtained, the object of the exercise is not to “recreate what a particular
judge or fact finder would have done. Rather, the [finder of fact’s] task is to
determine what a reasonable judge or fact finder would have done . . . .”
(O’Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 236 [278 Cal.Rptr.3d 654].)
“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
v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357-358 [89 Cal.Rptr.3d
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 330-331, 333
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-E,
Professional Liability, 6:322 (The Rutter Group)
3 Neil M. Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.30
(Matthew Bender, Rev. Ed.)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.70 et seq. (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)

© Judicial Council of California.