California Bar Journal
spacer.gif (810 bytes)


spacer.gif (810 bytes)

New decision may subject lawyers to suits

spacer.gif (810 bytes)
spacer.gif (810 bytes)

Diane KarpmanLawyers are a besieged species, threatened by an unfathomable Appellate Court decision which may subject us to a multitude of lawsuits, and by a sinister new computer virus.

The new case, Viner v. Sweet (Cal. Ct.App. 2d Dist., 9/28/01) B 138 149, is a troubling transactional legal malpractice decision with enormous implications. The court rejected the "case within a case" analysis often used to establish causation in legal malpractice cases dealing with litigation situations. "[I]t would introduce unprecedented layers of pure speculation and conjecture into the trial of the malpractice action." The court characterized the requirement of the plaintiff proving that they could have gotten a "better deal" as being "speculative." It maintained that it is impossible to prove that requirement in a business transaction, be-cause the negotiation of terms is fluid, with continual give and take.  Therefore, you cannot reconstruct all of the deal points, since they are endlessly adjusted or traded.

Causation is totally abandoned. Inquiring minds want to know what is substituted for this prima facie element of any tort claim in Anglo-American law. Answer: The testimony of the plaintiff's paid expert, who calculated the damages based on the contractual provisions that the plaintiffs contend that they should have had. That is the only "evidence" of causation in the opinion and was the sole basis of the jury's verdict. Other evidence may have existed, but it is not part of the reported decision.

If expert opinion is a sufficient substitute for causation, then it might be argued that the court labeling as "speculative" over historic causation methods is a bit disingenuous. Hind-sight is wonderful to prove that any particular "deal point" would have been beneficial or detrimental. If the deal goes south, it would seem that clients can sue their lawyers by hiring an expert who can say what would have happened if the client had been successful. Therefore, lawyers will become the guarantors of the deal, because they will have the only coverage available.

In Viner, the lawyer allegedly misled the clients regarding the actual content of the contract. Misrepresen-tation to a client is simple, uncomplicated fraud. That presented a clear and reliable method to impose liability, as opposed to the court's analysis. Fraud presented a tenable doctrinal approach to justify liability. This "less structured approach to causation and damages" was endorsed by the court. It is beyond being "less structured" and relaxes any quantifiable causation requirement entirely.

Then, in addition, along comes W32magistr, a sinister computer virus that targets those who use terms such as "affirmed," "sentences you," "ordered to prison," "sufficiency of evidence," "habeas corpus," etc. Gosh, I wonder who that could be?  Then, after deleting every 25th file, it overwrites "youares---." A malicious timed payload then e-mails (asexual reproduction) many of your soon-to- be former friends. Further, it has monthly surprises, eventually causing your computer icons to run from your mouse (only on odd days of the month), and includes a message: "You think you are God but. . . ." You can find it at with removal instructions.