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WPI 107.06 Legal Malpractice—Negligence—Burden of Proof

6 WAPRAC WPI 107.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 107.06 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part IX. Particularized Standards of Conduct

Chapter 107. Legal Malpractice

WPI 107.06 Legal Malpractice—Negligence—Burden of Proof

(Name of plaintiff)has the burden of proving each of the following propositions:

(1) [That(name of defendant)was(name of plaintiff's)attorney at the time of the acts in question] [That(name of defendant)owed a fiduciary duty to(name of plaintiff)at the time of the acts in question];

(2) That(name of defendant)failed to comply with the standard of care and was therefore negligent;

(3) That(name of plaintiff)was [injured] [damaged]; and

(4) That the negligence of(name of defendant)was a proximate cause of(name of plaintiff's)[injury] [damage].

If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for(name of plaintiff). On the other hand, if any of these propositions has not been proved, your verdict should be for(name of defendant).

NOTE ON USE

The instruction sets forth the plaintiff's burden of proof for a negligence-based legal malpractice action.

The first element includes bracketed alternatives. Use the first alternative when the plaintiff alleges an attorney-client relationship with the defendant. Use the second alternative when the plaintiff alleges that he or she is a non-client to whom the defendant owed a fiduciary's duty of care. If element (1) has already been determined as a matter of law by the judge, then use the applicable alternative and instruct the jury that the element has already been established.

If there are disputes of material fact concerning the existence of an attorney-client relationship, and/or if there are factual matters involving the possible duty of the attorney toward a third party, use this instruction with WPI 107.01 (Existence of Attorney-Client Relationship) and WPI 107.02 (Duty to Non-Client), as appropriate.

Use WPI 107.04 (Legal Malpractice—Negligence—Standard of Care) with this instruction. Do not use WPI 10.01 (Negligence—Adult—Definition) in a professional malpractice case.

Use bracketed material as appropriate. Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) with this instruction. For cases that involve multiple defendants, this instruction will need to be modified. See WPI 21.02.01 (Burden of Proof on the Issues—No Affirmative Defense—Two or More Defendants); WPI 41.03 (Two or More Defendants—Different Legal Duties).

COMMENT

Elements. The elements of a negligence-based legal malpractice action are: duty of care; breach of the duty; proximate cause; and damages. Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1987); Stangland v. Brock, 109 Wn.2d 675, 682, 747 P.2d 464 (1987). Accordingly, the plaintiff must show:

1. The existence of an attorney-client relationship giving rise to a duty of care on the part of the lawyer;
2. An act or omission breaching that duty of care;
3. Damage to the client; and
4. The breach of duty must have been a proximate cause of the damage to the client.

DeWolf, 29 Washington Practice, Washington Elements of an Action § 17:1 (2016–2017 ed.).

In Schmidt v. Coogan, 181 Wn.2d 661, 680, 335 P.3d 424, 435 (2014), the court held that the uncollectibility of an underlying judgment is an affirmative defense to legal malpractice that the defendant-attorney must plead and prove.

For further discussion of specific issues, see: the Comment to WPI 107.04 (concerning the standard of care in a legal malpractice case); the Comment to WPI 107.07 (concerning proximate cause); and the Comment to WPI 107.08 (concerning damages).

[Current as of September 2018.]

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