Proximate Causation in Colorado Legal Malpractice Litigation

• Publication year: 2002
• Pages: 9

31 Colo.Law. 9 Colorado Lawyer 2002.

2002, January, Pg. 9. Proximate Causation in Colorado Legal Malpractice Litigation

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9

Vol. 31, No. 1, Pg. 9

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 9]

Articles

Proximate Causation in Colorado Legal Malpractice Litigation
by Michael T. McConnell

This article provides an overview of the element of proximate causation in legal malpractice cases. Understanding this element should help lawyers in all areas of practice better manage their risk of malpractice claims

Lawyers are perceived as attractive targets of litigation Difficult economic times exacerbate this problem. As the economy declines, the attractiveness of suing a lawyer grows With the economy officially declared in a recession, and the consequent increased likelihood that more lawyers will be sued, it is important to understand fully the issue of proximate causation in legal malpractice cases so that all lawyers can better manage their risks.

It is easy to criticize lawyers. Almost everything a lawyer does can be, and often is, second-guessed. The adversarial system of justice requires and rewards probing an opponent's position for both real and imagined weaknesses. In this environment, and perhaps because of this environment, it is common for one lawyer to conclude another has made a mistake. Accordingly, if a client's expectations are disappointed, the client usually can find another lawyer who will testify that the first one made a mistake. In other words, it is often not difficult for a client who wishes to sue his or her own lawyer to establish negligence by expert testimony.

This article provides an overview of the element of proximate causation in legal malpractice cases. Understanding this element should help lawyers in all areas of practice better manage their risk of malpractice claims. The article begins by discussing the elements of a legal malpractice claim generally. It then discusses principles of proximate causation, including "cause in fact" and legal cause. The nuances of the proximate causation doctrine as applied in legal malpractice cases and the unique intellectual and legal challenges that the proximate cause element presents in such cases are covered next. Finally, the article explores examples of common causation issues that occur in legal malpractice cases.

ELEMENTS OF A LEGAL
MALPRACTICE CLAIM

For a valid legal malpractice claim to exist, a disappointed client must be able to prove more than that a mistake was made. To establish a malpractice claim against a lawyer, the client must prove the following elements: (1) the attorney owed a duty of care to the client; (2) the attorney breached that duty; and (3) the attorney proximately caused damage to the client.1 Negligence may occur and yet cause no harm.2 If the negligence does not cause harm, no valid claim for legal malpractice exists. As in any other negligence case, a plaintiff in a legal malpractice case is required to prove that his or her lawyer's wrongdoing was the "proximate cause" of cognizable damage.

In many tort cases, analyzing and proving causation is straightforward. For example, analyzing and proving that an automobile collision caused a broken leg is rarely an intellectual challenge. The plaintiff was healthy before the collision—and injured after it. However, analyzing causation in a legal malpractice case is not as easy. Consider a case in which the lawyer drafts an option contract for stock in a company that owns mineral rights. After several years, the client attempts to exercise the option, but the owner challenges the enforceability of the contract, arguing that it violates the Rule Against Perpetuities.3 The client, represented by new counsel, accepts a settlement for half the value of mineral rights.

This may sound like a bar exam question, but this precise scenario was the subject of the Colorado Court of Appeals decision in Temple Buell Foundation v. Holland & Hart.4 The court ruled as a matter of law that the option contract did not violate the Rule Against Perpetuities and was enforceable. The court noted there was expert testimony that the lawyer should have included a savings clause in the contract. Based on this expert testimony, the court refused to dismiss the claim that the lawyer was negligent, even though he drafted a contract that was, as a matter of law, enforceable. The court did not analyze the issue of whether the alleged negligence in drafting an enforceable contract was the proximate cause of cognizable damage. Since Temple Buell, Colorado appellate courts have issued a number of opinions in legal malpractice cases that examine the issue of proximate causation.

Michael T. McConnell, Denver, is a member of McConnell Siderius Fleischner Houghtaling & Craigmile, LLC —(303) 480-0400; mmcconnell@msfhc.com. The author wishes to acknowledge the contribution of Troy R. Rackham.

GENERAL PRINCIPLES OF PROXIMATE CAUSATION

The doctrine of proximate causation establishes the parameters of an actor's liability for the consequences of his or her conduct. In a broad philosophical sense, the causes of an event go back to the dawn of time. As a practical matter, however, legal responsibility is limited to those causes that society recognizes as so closely connected to an injury that the law is justified in imposing liability.5

Colorado appellate courts have stated many times that proximate causation is a question of fact for the jury to decide.6 Nevertheless, courts can and do examine the proper boundaries of proximate causation as a matter of law. For instance, the chain of causation in some cases may be so attenuated that proximate cause does not exist as a matter of law.7

Determining the existence of causation involves two entirely different legal problems. One is analyzing causation in the sense that ordinary people use the term in everyday life. This is often referred to as "cause in fact," which is a perception about the relationship between two events. The other legal problem is determining the proper scope of a defendant's legal responsibility for negligent conduct that in fact caused harm. This is referred to as "proximate" or "legal" cause. Courts often lump these distinct issues together, confounding the analysis of both aspects of causation. Courts also sometimes use inconsistent and confusing terminology to discuss these issues.8 The remainder of this article attempts to unravel these concepts as they apply to legal malpractice cases.

The "But For" Test and the Hypothetical Alternative

Colorado's pattern jury instructions define "cause in fact" using the "but for" test. The pattern jury instruction states:

The word "cause" as used in these instructions means an act or failure to act which in the natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have been incurred.9 (Emphasis added.)

If the plaintiff's injury would have occurred even if the defendant had acted in a non-negligent fashion, the "but for" test fails. Thus, the "but for" test is a device to weed out casual and unsubstantial causes.10

The plaintiff has the burden of presenting evidence that establishes "with reasonable probability" that cause in fact exists. A plaintiff need not prove causation with absolute certainty. However, the evidence must establish causation beyond mere possibility or speculation.11 When there are multiple potential causes of an injury, the plaintiff must prove that the defendant's conduct was a "substantial factor" in causing the injury.12

Even in the simplest and most straightforward case, the "but for" test can be applied only by comparing what actually happened with a hypothetical alternative.13 In some cases, evidence about the hypothetical alternative indisputably fails to satisfy the "but for" test and causation is resolved as a matter of law. Where there was an alleged negligent failure to warn, but a warning would have been superfluous, causation does not exist as a matter of law.14 Where a product was alleged to be defective because of lack of human restraints, but restraints indisputably would not have prevented the injury, causation does not exist as a matter of law.15 For example, in a case where the plaintiff was injured in a trampoline accident and the defendant was alleged to have negligently failed to post spotters, causation did not exist because spotters could not have helped the plaintiff complete the type of flip attempted.16 These cases generally illustrate evaluations of the hypothetical alternative. Evaluating the hypothetical alternative, however, becomes much more challenging in legal malpractice cases.

"Proximate" Causation and Policy Considerations

A plaintiff must establish not only cause in fact, but also "proximate" or "legal" cause. The goal of imposing this requirement is to limit a defendant's liability to the types of harms risked by the negligent conduct. Therefore, even if cause in fact exists, courts nevertheless must determine whether the circumstances of a particular case establish a close enough connection between the defendant's conduct and the injury to warrant imposing liability. The terminology and rationales used in the case law to describe and justify limiting liability on this basis are varied and often confusing. Regardless of how expressed or justified, at its root the issue of proximate causation is an analysis of public policy and fundamental fairness. In most cases, such an analysis should be performed by the court as the determination of a question of law, rather than by a jury as a question of fact.17

One example of this type of analysis is the wrongful death case of...