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The Importance of Causation in Legal Malpractice


The elements of a prima facie claim for legal malpractice are:

— the existence of a duty;

— the breach of that duty;

— damages (suffered by the claimant); and

— causation (specifically, the breach of the relevant duty must be the cause of the plaintiff’s damages)

The plaintiff/claimant must establish the existence of all four elements to the requisite standard of proof.


In order to establish causation, the plaintiff/claimant must establish a sufficient causal connection between the injury for which (s)he seeks compensation and some identifiable act or omission of the defendant lawyer.

The Plaintiff may use either of two legal tests to prove causation:

1. The Actual Cause (aka, “But For”) Test

This test requires the plaintiff to prove that (s)he would have achieved a better result had the attorney not committed negligence. We will examine precisely how this is done in a future post, but the model jury instruction given to California juries on this issue explains it fairly well:

To recover damages from [defendant], [plaintiff] must prove that [plaintiff] would have obtained a better result if [defendant] had acted as a reasonably careful attorney. [Plaintiff] was not harmed by [defendant]’s conduct if the same harm would have occurred anyway without that conduct (CACI No. 601)

2. The Substantial Factor (aka, “Concurrent Independent Cause”) Test .

This test is used when the client’s damages resulted from multiple independent causes, and where each of those causes by itself would have been sufficient to cause the injury or damages. In these cases, the question is whether the lawyer’s negligence (act or omission) was a substantial factor in bringing about the injury or damages. Again, this may sound simple, but proving it can be complicated in practice. As with the Actual Cause test, we will examine this issue more closely in future posts.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.

You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.

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