Shifting the causation burden of proof in legal malpractice actions: courts are applying doctrines taken from other types of cases and placing the burden on defendant attorneys on the basis of public policy considerations.

• Author: Greenberg, Alan E.
• Position: California

THE well-known elements of a cause of action for legal malpractice are: (1) the attorney's duty to use the skill, prudence and diligence that others in his or her profession commonly possess and exercise; (2) acts that constitute a breach of that duty; (3) injury, damage or loss to the plaintiff; and (4) a proximate causal connection between the conduct constituting the breach of duty and injury, damage or loss. The plaintiff usually has the burden of establishing each of these essential elements, including causation. (1)

Clients alleging that their attorney was negligent in connection with litigation have the burden of proving that damages resulted, this burden involving, usually, the difficult task of demonstrating that the attorney's negligent investigation, advice or conduct of the client's affairs was a substantial factor in causing an unfavorable result, including the loss of the client's meritorious claim. Proof that the client would have prevailed or achieved a better result in the underlying action generally requires trial of a "suit within a suit," that is, a determination of the merits of the underling action in the malpractice trial. This is sometimes also referred to as the "case within the case" requirement. (2)

BUT NOW THERE'S A SHIFT

When the attorney's alleged negligence impacts an underlying personal injury or products liability suit, the courts in California have begun to wrestle with the proper application of doctrines that have been applied in non-legal malpractice contexts. In negligence and products liability cases, for example, the doctrine has evolved that the burden of proof on the issue of causation may be shifted to the defendant when demanded by public policy considerations. (3) "On rare occasions," the California Court of Appeal stated in National Council Against Health Fraud Inc. v. King Bio Pharmaceuticals Inc., "the courts have altered the normal allocation of the burden of proof." (4)

As the California Supreme Court stated in Haft v. Lone Palm Hotel:

[T]he shift of the burden of proof ... may be said to rest on a policy judgment that when there is a substantial probability that a defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove "proximate causation" conclusively, it is more appropriate to hold the defendant liable than to deny an innocent plaintiff recovery, unless the defendant can prove that his negligence was Not a cause of the injury. (5) The essential principle underlying the narrow exception to the usual allocation of proof in negligence and product liability actions is that the burden of proving an element of a case is more appropriately borne by the party with a greater access to information. For example, in Harris v. Truck Lines Inc., the California Supreme Court stated that a "defendant who is in a better position to discover and preserve ... evidence should not be permitted to profit from the plaintiff's inability to produce it." (6)

SOURCE OF THE SHIFT

There is no definitive or "general rule" that clarifies the circumstances under which the defendant in a personal injury or products liability case must prove non-causation of the plaintiff's injuries. The most commonly cited formulation of the factors to consider is in McGee v. Cessna Aircraft Co., in which the California Court of Appeal quoted the following reasons from the California Law Revision Committee's comment to Section 500 of the state's Evidence Code, that a shift in the normal allocation of the burden of proof is based on consideration of a "number of factors: the knowledge of the parties concerning the particular facts, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or non-existence of the fact." (7)

Generally, in the relatively few non-legal malpractice cases where the burden of proof for causation was shifted, the courts found that it was impossible for the plaintiff to prove its case otherwise. (8)

APPLICATION TO LEGAL MALPRACTICE

The McGee factors were applied by California courts in two legal malpractice cases involving underlying products liability actions, with different results. In Thomas v. Lusk, (9) the California Court of Appeal held that the trial court committed prejudicial error in instructing the jury that the burden of proof of causation was shifted to the attorney on a showing of the attorney's negligence. In Galanek v. Wismer, (10) another district of the Court of Appeal held that the trial court committed error by granting a non-suit to the attorney because, under the facts of the case, the burden of proof on causation should have been shifted to him.

1. Thomas v. Lusk

   Emory Thomas was injured on his job as an aircraft repairer when the metal head of a hammer disengaged from the handle, causing his left hand to come in contact with turbine blades. He sustained a severe injury to his finger. Immediately following the accident, a fellow employee retrieved the broken hammer, which was in four parts, and turned it over to Thomas's...