CACI 601 Negligent Handling of Legal Matter

New September 2003; Revised June 2015, May 2020

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In cases involving professionals other than attorneys, this instruction would need to be modified by inserting the type of the professional in place of “attorney.” (See, e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 829–830 [60 Cal.Rptr.2d 780] [trial-within-a-trial method was applied to accountants].)

The plaintiff must prove that but for the attorney’s negligent acts or omissions, the plaintiff would have obtained a more favorable judgment or settlement in the underlying action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d 629, 70 P.3d 1046].) The second sentence expresses this “but for” standard.

•“If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749–750 [76 Cal.Rptr.2d 749, 958 P.2d 1062].)

•“In the legal malpractice context, the elements of causation and damage are particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582 [171 Cal.Rptr.3d 23].)

•“In a client’s action against an attorney for legal malpractice, the client must prove, among other things, that the attorney’s negligent acts or omissions caused the client to suffer some financial harm or loss. When the alleged malpractice occurred in the performance of transactional work (giving advice or preparing documents for a business transaction), must the client prove this causation element according to the ‘but for’ test, meaning that the harm or loss would not have occurred without the attorney’s malpractice? The answer is yes.” (Viner, supra, 30 Cal.4th at p. 1235.)

•“[The trial-within-a-trial method] is the most effective safeguard yet devised against speculative and conjectural claims in this era of ever expanding litigation. It is a standard of proof designed to limit damages to those actually caused by a professional’s malfeasance.” (Mattco Forge Inc., supra, 52 Cal.App.4th at p. 834.)

•“ ‘Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty … .’ Conversely, ‘ “ ‘[t]he mere probability that a certain event would have happened, upon which a claim for damages is predicated, will not support the claim or furnish the foundation of an action for such damages.’ ” ’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165–166 [149 Cal.Rptr.3d 422], original italics, footnote and internal citations omitted.)

•“One who establishes malpractice on the part of his or her attorney in prosecuting a lawsuit must also prove that careful management of it would have resulted in a favorable judgment and collection thereof, as there is no damage in the absence of these latter elements.” (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1506–1507 [33 Cal.Rptr.2d 219], original italics.)

•“ ‘The element of collectibility requires a showing of the debtor’s solvency. “[‘W]here a claim is alleged to have been lost by an attorney’s negligence, … to recover more than nominal damages it must be shown that it was a valid subsisting debt, and that the debtor was solvent.’ [Citation.]” The loss of a collectible judgment “by definition means the lost opportunity to collect a money judgment from a solvent [defendant] and is certainly legally sufficient evidence of actual damage.” ’ ” (Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1190 [164 Cal.Rptr.3d 54], original italics, internal citations omitted.)

•“Collectibility is part of the plaintiff’s case, and a component of the causation and damages showing, rather than an affirmative defense which the Attorney Defendants must demonstrate.” (Wise, supra, 220 Cal.App.4th at p. 1191.)

•“Because of the legal malpractice, the original target is out of range; thus, the misperforming attorney must stand in and submit to being the target instead of the former target which the attorney negligently permitted to escape. This is the essence of the case-within-a-case doctrine.” (Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 231 [60 Cal.Rptr.2d 495].)

•“Where the attorney’s negligence does not result in a total loss of the client’s claim, the measure of damages is the difference between what was recovered and what would have been recovered but for the attorney’s wrongful act or omission. [¶] Thus, in a legal malpractice action, if a reasonably competent attorney would have obtained a $3 million recovery for the client but the negligent attorney obtained only a $2 million recovery, the client’s damage due to the attorney’s negligence would be $1 million—the difference between what a competent attorney would have obtained and what the negligent attorney obtained.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1758 [30 Cal.Rptr.2d 217].)

•“[A] plaintiff who alleges an inadequate settlement in the underlying action must prove that, if not for the malpractice, she would certainly have received more money in settlement or at trial. [¶] The requirement that a plaintiff need prove damages to ‘a legal certainty’ is difficult to meet in any case. It is particularly so in ‘settle and sue’ cases … .” (Filbin, supra, 211 Cal.App.4th at p. 166, original italics, internal citation omitted.)

•“[W]e conclude the applicable standard of proof for the elements of causation and damages in a ‘settle and sue’ legal malpractice action is the preponderance of the evidence standard. First, use of the preponderance of the evidence standard of proof is appropriate because it is the ‘default standard of proof in civil cases’ and use of a higher standard of proof ‘occurs only when interests “ ‘more substantial than mere loss of money’ ” are at stake.’ ” (Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092 [264 Cal.Rptr.3d 621].)

•“In a legal malpractice action, causation is an issue of fact for the jury to decide except in those cases where reasonable minds cannot differ; in those cases, the trial court may decide the issue itself as a matter of law.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d 309].)

•“ ‘The trial-within-a-trial method does not “recreate what a particular judge or fact finder would have done. Rather, the jury’s task is to determine what a reasonable judge or fact finder would have done … .” … Even though “should” and “would” are used interchangeably by the courts, the standard remains an objective one. The trier of fact determines what should have been, not what the result would have been, or could have been, or might have been, had the matter been before a particular judge or jury. …” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710], original italics.)

•“If the underlying issue originally was a factual question that would have gone to a tribunal rather than a judge, it is the jury who must decide what a reasonable tribunal would have done. The identity or expertise of the original trier of fact (i.e., a judge or an arbitrator or another type of adjudicator) does not alter the jury’s responsibility in the legal malpractice trial-within-a-trial.” (Blanks, supra, 171 Cal.App.4th at pp. 357–358.)