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Here’s how the standards of proof may change

If an attorney’s negligence or bad actions cause you harm, you might want to sue for legal malpractice. That’s understandable. In certain cases, such as with personal injury or business cases, such malpractice could easily cost you tens of thousands or hundreds of thousands of dollars. Or more. A malpractice suit might help you recover those damages.

Of course, that would lead you to the next question: What does it take to win a malpractice suit? If you don’t settle ahead of time, you’ll need to prove both that your attorney failed to meet the standards for reasonable conduct and that those failures caused you real harm. It’s this second point that often makes cases against attorneys notoriously tricky. And it’s worth noting how the standards for that proof can change.

Most cases rely on the “but for” standard

To prove that an attorney’s failures caused you harm, you must typically show that you would have arrived at a better result “but for” your attorney’s failures. In other words, if your attorney had simply done a reasonable job, would you have reached a better outcome?

The idea is that some failures might not cause you actual harm. For example, imagine an attorney who fails to properly handle a company’s intellectual property during a merger:

  • The company believes its attorney’s failures prevent it from enforcing the IP rights it expected to hold
  • As a result, the company feels the attorney’s failures cost it millions of dollars
  • However, it turns out that the intellectual property wasn’t valid in the first place
  • Even if the attorney had handled the transaction the right way, the company couldn’t enforce the IP
  • Because the company would never have been able to enforce the IP, the attorney’s failures during the transaction didn’t make a real difference

The idea in this example is that the company wouldn’t have been able to enforce its IP even if the attorney had done a reasonable job. The attorney’s failures were real, but the attorney’s failures weren’t the “but for” cause for the company’s losses.

Proving that you would have reached a better result if not for your attorney’s failures often requires expert testimony and a “trial within a trial.”

Sometimes the standards change

While most cases that follow an attorney’s failures use the “but for” standard, it’s not the only standard. In 2018, the California Fourth District Appellate Court established the use of a “substantial factor” standard for causation in certain cases.

The case in question was of a swimmer who had sued her attorney for fraudulent concealment and intentional breach of duty. Hers wasn’t strictly a malpractice case, but it functioned similarly. She sought to prove her attorney had failed to meet reasonable standards and that those failures had caused her real harm. She won in the trial court, but her former attorney requested a new trial, arguing that the swimmer hadn’t met the “but for” standard for harm. The judge granted the attorney a new trial, but the appellate court reversed that decision. It said the wrongs the swimmer’s attorney committed were subject to the substantial factor standard, not the “but for” standard.

According to the California Civil Jury Instructions (CACI, pronounced “Casey”), the “substantial factor” subsumes the “but for” standard. Here, a substantial factor is defined as:

“…a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

“[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]”

This meant the swimmer didn’t need to win a “trial within a trial” to prove her former attorney had harmed her. It was enough to prove that he’d committed fraud and violated his fiduciary duty.

When is it legal malpractice?

The appellate court noted the swimmer’s case wasn’t a legal malpractice case based on negligence. It was a case based on willful malfeasance. Though it looked, in many ways, like a normal malpractice case, it functioned differently. And that meant a different standard of proof.

In the end, the case shows two things. It shows how tricky it can be to recognize legal malpractice, and it shows that you might have other options to recover your damages. It takes a solid grasp of your case and the applicable law to find the best path.