 Lawyers
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 @symantic.com with removal
instructions. |
