California Civil Jury Instructions (CACI) (2017)

602. Success Not Required

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602.Success Not Required
[A/An] [insert type of professional] is not necessarily negligent just
because [his/her] efforts are unsuccessful or [he/she] makes an error
that was reasonable under the circumstances. [A/An] [insert type of
professional] is negligent only if [he/she] was not as skillful,
knowledgeable, or careful as another reasonable [insert type of
professional] would have been in similar circumstances.
New September 2003; Revised December 2007
Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 505, Success Not Required, should be
used.
Sources and Authority
• “The services of experts are sought because of their special skill. They have a
duty to exercise the ordinary skill and competence of members of their
profession, and a failure to discharge that duty will subject them to liability for
negligence. Those who hire such persons are not justified in expecting
infallibility, but can expect only reasonable care and competence. They purchase
service, not insurance.” (Gagne v. Bertran (1954) 43 Cal.2d 481, 489 [275 P.2d
15].)
• “This rule [of Gagne v. Bertran, supra] has been consistently followed in this
state with respect to professional services (Roberts v. Karr, 178 Cal.App.2d 535
[3 Cal.Rptr. 98] (surveyor); Gautier v. General Telephone Co., 234 Cal.App.2d
302 [44 Cal.Rptr. 404] (communications services); Bonadiman-McCain, Inc. v.
Snow, 183 Cal.App.2d 58 [6 Cal.Rptr. 52] (engineer); Lindner v. Barlow, Davis
& Wood, 210 Cal.App.2d 660 [27 Cal.Rptr. 101] (accountant); Pancoast v.
Russell, 148 Cal.App.2d 909 [307 P.2d 719] (architect)).” (Allied Properties v.
John A. Blume & Associates (1972) 25 Cal.App.3d 848, 856 [102 Cal.Rptr.
259].)
• “The attorney is not liable for every mistake he may make in his practice; he is
not, in the absence of an express agreement, an insurer of the soundness of his
opinions or of the validity of an instrument that he is engaged to draft; and he
is not liable for being in error as to a question of law on which reasonable
doubt may be entertained by well-informed lawyers.” (Lucas v. Hamm (1961)
56 Cal.2d 583, 591 [15 Cal.Rptr. 821, 364 P.2d 685], cert. denied (1962) 368
U.S. 987 [82 S.Ct. 603, 7 L.Ed.2d 525], internal citations omitted.)
• Jury instructions stating this principle are proper: “[A]n attorney does not
ordinarily guarantee the soundness of his opinions and, accordingly, is not liable
for every mistake he may make in his practice. He is expected, however, to
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possess knowledge of those plain and elementary principles of law which are
commonly known by well informed attorneys, and to discover those additional
rules of law which, although not commonly known, may readily be found by
standard research techniques.” (Smith v. Lewis (1975) 13 Cal.3d 349, 358 [118
Cal.Rptr. 621, 530 P.2d 589], overruled in part on other grounds in In re
Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d
561].)
• “In order to prevail on this theory and escape a negligence finding, an attorney
must show that there were unsettled or debatable areas of the law that were the
subject of the legal advice rendered and this advice was based upon ‘reasonable
research in an effort to ascertain relevant legal principles and to make an
informed decision as to a course of conduct based upon an intelligent
assessment of the problem.’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 378–379 [89 Cal.Rptr.3d 710].)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 326–329
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:234 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, §§ 32.11, 32.62
(Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, § 76.50 (Matthew Bender)
1 California Legal Forms, Ch. 1A, Role of Counsel in Starting a New Business,
§§ 1A.30–1A.32 (Matthew Bender)
PROFESSIONAL NEGLIGENCE CACI No. 602
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