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Causation requirement reaffirmed

Diane 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

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

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