California Civil Jury Instructions (CACI)

603. Alternative Legal Decisions or Strategies

An attorney is not necessarily negligent just because he or she [chooses one legal strategy/makes a decision/makes a recommendation] and it turns out that another [strategy/decision/recommendation] would have been a better choice.

New September 2003

Sources and Authority

  • “We recognize, of course, that an attorney engaging in litigation may have occasion to choose among various alternative strategies available to his client . . . .” (Smith v. Lewis (1975) 13 Cal.3d 349, 359 [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 view of the complexity of the law and the circumstances which call for difficult choices among possible courses of action, the attorney cannot be held legally responsible for an honest and reasonable mistake of law or an unfortunate selection of remedy or other procedural step.’ [Citation.]” (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 613 [116 Cal.Rptr. 919].)

Secondary Sources

3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.11 (Matthew Bender)

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

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