Causation requirement reaffirmed
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Karpman |
By Diane Karpman
Regardless of whether a lawyer is in litigation or in transactional work, the
plaintiff in a lawsuit against the attorney for negligence must demonstrate
that "but for" the acts of the lawyer, a "more favorable result" would have
been obtained. This is, of course, the historic causation requirement that applies
to all humans even lawyers. This has just been reaffirmed by the Supreme
Court in Viner v. Sweet, filed June 23 and available at www.courtinfo.ca.gov/opinions/documents/S101964.PDF.
Before this case, the causation requirement had been eroding in transactional
malpractice cases. Some courts polarized malpractice by placing transactional
cases at the opposite end of a phantom scale from trial work. Justice Joyce
Kennard's opinion in Viner explains that some litigation is not complex and
other litigation is as complex as multilayered transactional work.
Basically, what a lawyer is hired to do should not make an iota of difference
in liability for professional negligence and causation. Litigators dramatize
or recreate past events which are fixed in time, and transactional lawyers attempt
to mold the future, but the requirement of causation is the same. That is, it
must be proven that the lawyer caused the harm, because lawyers are not guarantors
for every disappointed client's deal. Clients "predictably attempt to shift
some part of the loss or disappointment," but lawyers are not "scapegoats" for
clients' "business misjudgments."
Writing for the unanimous court, Justice Kennard explained and defined a "code"
that appears in many cases. When a court states that the loss is "remote or
speculative," that is "code" for the court finding an absence of causation.
See Ferguson v. Lieff (2003 Cal. LEX-IS 3517) for how the "code" works.
Viner cleared up another confusing aspect of causation how it is established.
"Trial within the trial"; "better deal"; "no deal" all are viable methods
to prove causation. A plaintiff may select any method, but causation has been
required for 120 years.
Difficulties in proof do not obviate the requirement that a plaintiff present
"evidence which affords a reasonable basis" that the conduct of the defendant
was the cause of the result. "Circumstantial evidence" can be used, because
an "express concession by the other parties to the negotiation that they would
have accepted other or additional terms is not necessary."
The distinction between causation and damages was muddled in CSAA v. Parichan
(2000) 84 Cal. App. 4th 702, which was disapproved to the extent that it is
inconsistent with Viner. In CSAA, the court suggested a less structured approach
to demonstrating damages. Viner was remanded due to the court's failure to give
the "but for" instruction.
Why are so many cases issued in June? One theory is that the yearly statistics
for all the courts close in June. Another is that even courts don't like to
go on vacation with a lot of cases pending.
Whether transactional or litigation, it is all still lawyering.
Diane Karpman can be reached at karpethics@aol.com.
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