Articles Tagged with Proximate Causation

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One defense to a legal malpractice case is that the plaintiff could never have collected any money from the defendant in the underlying case. This defense is rarely asserted, but it can be very effective. In a malpractice case, you must prove what the outcome of the underlying case would have been absent negligence. This type of proof is imperfect because some speculation is involved.

For example, client sues an entity that is insolvent. Client’s lawyer makes an error that causes the client to lose the case (such as missing the statute of limitations). Client sues his former lawyer. Under the insolvency defense, client loses the case because he could not have collected anyway and thus the lawyer did not “cause” the loss of his recovery.

In Ewing v. Westport Insurance Company, CA – 19-551, the court rejected the insolvency defense. The opinion explains that the defense of insolvency was not proven:

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The case is Iliescu v. Hale Lane Peek Dennison and Howard, No 76146, Supreme Court of Nevada.This is a complicated case and factual scenario that does often come up in legal malpractice cases. It goes like this:

A. Your client loses a ruling in a trial court in the underlying case.

B. Your client fires you.  (Next, they sue you for malpractice).

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In Herren v. Armenta, 1-CA-CV-18-0381, the plaintiff sued her former lawyers alleging that they committed legal malpractice when the represented her in another case (the underlying case). In the underlying case, Tonto Supply, Inc., sued Herren for breach of contract and other torts. Herren alleged that her lawyers were negligent because they failed to timely respond to requests to admit and to several motions for summary judgment, resulting in a judgment against her.

This case presented a common problem with legal malpractice actions – would Herren have won the underlying case if the lawyers had responded in timely fashion?

In the malpractice case, Herren had the burden to prove that the lawyer’s negligence was the cause of her loss.  She was unable to meet that standard, despite the fact that she hired an expert. The court explains its decision to affirm the dismissal of the malpractice case:

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Proximate causation is often the issue that defeats a legal malpractice case. In this case, even though a law firm failed to timely appeal an interlocutory ruling, there was no malpractice because the ruling was correct. Thus, even if the appeal had been filed on time, the plaintiff would have lost the case anyway.

The underlying case was litigated in the courts of the State of Oregon. Here, the plaintiff hired a law firm to give an opinion on whether an adverse ruling in a case could be appealed. The law firm essentially said that the ruling was interlocutory and that no appeal could be taken until the entire case was completed. To complete the case the plaintiff dismissed its remaining claims and appealed. The appeal was, however, dismissed because it was not timely.

Plaintiff then sued the law firm alleging that the law firm gave incorrect advice on the appeal deadline. The trial court granted summary judgment for the law firm. It held that plaintiff could not establish proximate causation, that is, but for the negligence, plaintiff would have obtained a better result in the underlying lawsuit.

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The plaintiff, Cynthia O’Neal, brought a legal malpractice claim against her former lawyers. O’Neal, an owner of a restaurant chain that fell on hard times, alleged that her former lawyers had a conflict of interest when the represented her company and the opposing party in an assumption of a lease. The court rejected her claim on the grounds that she was unable to establish proximate causation.

In my experience, proximate causation can be difficult to prove. Lawyers make mistakes. Sometimes those mistakes breach the duty of care. The plaintiff must tie the negligent act to the damages suffered by plaintiff and come up with a plausible theory as to how the lawyers made things worse and caused the damage.

One area where it is very difficult to prove proximate causation is a legal malpractice claim in the foreclosure setting. The lawyer who defends the foreclosure may miss a deadline or make a legal error. However, that lawyer did not cause the default and did not proximately cause any damages.

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