AMI 1511 Factors—Proximate Cause—Attorney Negligence
Ark. Model Jury Instr., Civil AMI 1511
Arkansas Model Jury Instructions-Civil
December 2023 Update
Chapter 15. Malpractice and Breach of Fiduciary Duty
AMI 1511 Factors—Proximate Cause—Attorney Negligence
I have instructed you on proximate cause and the burden of proof. In deciding the issue of proximate cause in this case, there are a number of factors you must consider.
First, whether (plaintiff) would have prevailed in a case against (putative defendant); and
Second, the amount of damages that would have been awarded in that case, had it been tried, or the probable amount that would have been paid in a settlement; and
Third, to what extent a judgment against (putative defendant) would have been collectable.
In considering these questions, you should consider the instructions of law that would have been given in a suit against (putative defendant).
These are as follows:
[Give appropriate instructions.]
NOTE ON USE
Give this instruction immediately following AMI 501.
This is an instruction that should be given in a case where the defendant failed to timely file a case on behalf of the plaintiff. This instruction assumes that the previous attorney-client relationship between plaintiff and defendant is established by admission or uncontroverted evidence.
This instruction should be modified to fit other situations out of which the claimed attorney negligence arises.
COMMENT
To prove damages and proximate cause in an attorney negligence case, a plaintiff must show, but for the alleged negligence of the attorney, the result in the underlying action would have been different. In this respect, a plaintiff must prove the merits of the underlying case as part of the proof of the malpractice case. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003) (lawyer advised client to settle with active tortfeasor causing dismissal with prejudice of claim against passive tortfeasor).
In the case of a failure to perfect an appeal, whether the appeal would have been successful is a question of law, but the consequences of a successful appeal may present factual proximate cause issues. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998).
This instruction is intended to present the “case within a case” requirement in an understandable manner. For purposes of illustration, as well as simplicity, it is drafted for a case where the plaintiff's former attorney failed to file plaintiff's case within the statute of limitations period.
The circumstances out of which claims of attorney malpractice arise are numerous, and the factors relevant to proximate cause are so varied that a general instruction applicable to all is impracticable. Counsel, therefore, will often be required to fashion an appropriate instruction to focus the jury's attention upon the proximate cause factors relevant to each case.
In giving the jury the instructions that would have been applicable, had the previous case been filed, grammatical modifications may be necessary in order to make them intelligible. The instructions may be abbreviated, since the jury will be instructed on basic concepts by other instructions.
See Annotation, “Measure and Elements of Damages Recoverable for Attorney's Negligence in Preparing or Conducting Litigation—Twentieth Century Cases,” 90 A.L.R.4th 1033 (1991).
© 2023 Arkansas Supreme Court Committee on Jury Instructions-Civil
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