Legal malpractice is the professional negligence of a lawyer and all negligence liability requires proof of duty, breach, causation and injury. Duty is a axiomatic in professional negligence since lawyers owe their clients duties as a matter of law. (Duties lawyers may owe to non-clients turn on factors other than causation). “Breach of duty” is a variation of whether or not the lawyer had and applied the skill and care the average reasonable lawyer similarly situated would have used (and like the causation element generally requires expert testimony). Damages are the sine qua non of most civil actions and the jargon customarily used in legal malpractice remains “no harm no foul”. That leaves the “case within a case” (causation).  Causation is usually the pivotal element in legal malpractice, whether the “underlying” matter was litigation or a transaction.

            Causation, we remember from the torts classes in law school came in three aspects.  Proximate Cause, Legal Cause and Actual Cause.  Most jurisdictions have remained faithful to the common law legacy of proximate cause but the trend in many jurisdictions is to give it lip service and apply legal cause.  The major distinction is that of confusing the jury with something that sounds like “approximate cause” and plain talk.  Legal cause only requires the lawyer’s conduct to be a substantial factor in injury causation instead of concentrating on causation  “chains”.  Many states get to the same place using comparative negligence but without legal cause the jury is still confused.  Mitchell v Gonzales (1998) 54 Cal App 3d 1041.

             In 1977 Ohio, moderately endowed with lawyers, has, for all practical purposes, abolished causation as an indespensibly requisite element of legal malpractice.  Vahila v. Hall (1997) 77 Ohio  St. 3rd 421, 674 N.E. 2d 1164.  Their Supreme Court reversed a summary judgment in favor of defendant lawyer in a legal malpractice action where the appellate court determined Appellants had failed to provide evidence and as a result "there was no genuine issue of fact that the outcome of one or more of the matters in which defendants represented them would have been more favorable to them but for defendant's alleged breaches of duty."  The Supreme Court opined that stringent "but for" standards requiring the plaintiff to conduct a trial within a trial could be taken to a point of absurdity such as the size of jury verdicts in a particular jurisdiction and a high standard of proof tends to immunize most negligent attorneys from liability.  One example given was the negligent lawyer who fails to do discovery disenables his client from ever proving what discovery would have accomplished thus "by his own negligence will have protected himself from liability." (Vahila, id. at 1169.)  "However, we cannot endorse a blanket proposition that requires a plaintiff to prove, in every instance, that he or she would have been successful in the underlying matter.  Such a requirement would be unjust, making any recovery virtually impossible for those who truly have a meritorious legal malpractice claim."  (Vahila, id. at 1170.)  In that case Appellant's experts indicated in their affidavits that after review of the events surrounding the malpractice action they concluded defendants breached various duties owed and "that such negligent acts and/or omissions had been the direct and proximate cause of appellant's damages." (Vahila, id. at 1164.)

            "In conclusion, we find that appellees were not entitled to have summary judgment granted in their favor on any of the claims set forth in appellants' complaint.  Appellants were not required to establish that they would have been successful in the underlying civil, criminal and administrative  matters giving rise to the malpractice action."  Two of their seven concurring justices referred to the majority's conclusion as dicta since the court did state as well that "Construing the evidence most favorably toward Appellants, reasonable minds could differ as to the proximate cause(s) of the various alleged negligent representations and the alleged damages or losses flowing therefrom."  Nonetheless the door opened wide and apparently forever in Ohio.  Robinson v. Calig (1997) Lexis 1543 and Chutes v. Larrimer (1997) Lexis 1131 (Ohio Ct. of Appeals, Tenth Appellate District), Lewis v. Michael (1997) Lexis 1136 (Ohio Ct. of Appeals, Twelfth Appellate District.)

            Most jurisdictions do not recognize the tort of “spoliation” (intentional evidence loss).  Even with discovery driven time-bars, the nexus between a professional’s negligent conduct and the client’s or patient’s injury can be difficult for lawyers, let alone lay jurors.  So far no state has followed Ohio’s lead in resolving these issues by removing the compulsion to prove causation or California’s discontinuance of proximate cause in jury tort prove-ups (still extant in contract and other contexts though). 

            Whether dealt with as dominant cause, efficient cause, proximate, legal or otherwise, so far in legal malpractice all jurisidictions agree on one point. If a different and better result would not have occurred had the lawyer not been negligence (actual, “but for”) the negligent lawyer bears no responsibility for the client’s injury.  This is the bottom line of the “case within a case” .