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Key legal malpractice factor spotlighted: the “but for” element

Say that you’re a California resident having what you reasonably believe to be a strong legal claim against a third party for some alleged act of wrongdoing that caused you harm.

Notwithstanding the strong merits underlying your lawsuit, you lose the case. The only reason that you can come up with to remotely explain why your claim was defeated is the clearly deficient legal representation your retained attorney provided in the matter.

It’s only logical that you can file a legal malpractice claim against that individual and prevail on grounds of his or her negligence, right?

Actually, it is impossible to give a definitive “yes” answer to that question. A safer response is … maybe.

Here’s why. In addition to legally convincing a California court that counsel’s legal performance in your case was deficient, you must also prove that you would have emerged victorious if your lawyer would only have acted competently.

In other words, you can still lose your malpractice case even with a showing of attorney negligence. A court might find that, even though your lawyer’s performance was grossly subpar, its rendering was not the direct cause for your loss.

In legal parlance, that is commonly termed the “but for” test. We spotlighted the standard in a somewhat weathered but still relevant Glickman & Glickman blog post and revisit it here. We noted therein that “it can be a sticking point and slippery slope for many would-be legal malpractice plaintiffs.”

Questions sometimes arise concerning whether an attorney’s negligent representation spurred an adverse claim outcome. When they do, an affected party considering a malpractice claim might reasonably want to consult with attorneys from a proven pro-victims’ legal malpractice law firm.