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When is the Lawyer’s Conduct NOT the Cause of the Plaintiff’s Damages?


Losing a lawsuit is stressful, and plaintiffs often want to hold “someone” responsible for the loss. However, losing a lawsuit (without more) is not malpractice, and even if an attorney did act improperly in the course of representation, not every wrongful act or error constitutes actionable malpractice.

Similarly, not every breach of an attorney’s duty to a client actually “causes” recognizable damages. Sometimes, clients suffer losses–or damages–for reasons that are not the lawyer’s “fault.”


Causation is a mandatory element of a legal malpractice action. Damages are also a mandatory element, and the plaintiff must prove all elements of a legal malpractice claim in order to recover. If an attorney’s breach of duty did not result in any measurable harm, or did not change the outcome of the case or client matter, there may be no recognizable action for legal malpractice. This can be difficult for plaintiffs to accept, especially when they did not prevail in court when the attorney represented them in a previous action. However, it isn’t enough for a lawyer to breach a duty, or even for the plaintiff to suffer “damages” in the form of a legal loss. The plaintiff must be able to prove that the loss resulted from the lawyer’s breach of duty–in other words, that the lawyer’s malpractice actually caused the harm.


When a plaintiff suffers damages due to several independent causes, each of which would have been sufficient to cause the relevant injury, courts will apply a “substantial factor” test to determine whether or not a lawyer’s contributing negligence constitutes actionable malpractice. In these cases, the lawyer’s wrongful conduct will be deemed the “legal cause” of the plaintiff’s damages if the relevant breach of duty was both a material and a substantial factor in causing the plaintiff’s injury.

However, the normal “but for” test applies if the plaintiff’s injuries were caused by multiple forces but none of them was enough, on its own, to cause the damage. In such cases, the plaintiff must actually prove that the injury would not have occurred “but for” the attorney’s negligent conduct.



Sometimes, extraordinary or unusual events occur between the attorney’s negligence and the plaintiff’s injury. Where these “superseding, intervening” events were not reasonably foreseeable, and the plaintiff’s injury would not have occurred but for these unusual events, courts often hold that the chain of causation is “broken,” and the attorney is not liable for the injury. Even though the attorney’s conduct may be an actual cause of the injury, the superseding event is the “legal” (sometimes called the “proximate”) cause–and its occurrence relieves the lawyer of liability to the plaintiff.

Causation analysis is complex, highly fact-specific, and often difficult (if not impossible) for plaintiffs to evaluate on their own. If you believe that an attorney’s wrongful conduct caused you damage, consult an experienced litigation attorney promptly for an individual evaluation of your legal rights. Whether you believe the lawyer caused you injury, or whether you think an intervening event cut off the chain of causation, do not attempt to evaluate your legal rights without assistance.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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