WPI 107.07 Legal Malpractice—Proximate Cause

This instruction is to be used in malpractice cases. The instruction includes bracketed alternatives to encompass alleged negligence in handling a client's original case or other legal matters. The instruction was adapted from the standard instruction on proximate cause, WPI 15.01, for use in a legal malpractice case.

The instruction will not be needed for cases in which proximate cause will be decided by the judge as a matter of law, such as cases involving negligence in appellate practice or cases in which the proximate cause issue requires analysis of how a court would interpret points of law. See discussion in the Comment.

This instruction should be given with WPI 107.04 (Legal Malpractice—Negligence—Standard of Care), WPI 107.06 (Legal Malpractice—Negligence—Burden of Proof), and WPI 107.08 (Legal Malpractice—Negligence—Damages).

For the instruction's second paragraph, practitioners may choose to use more specific terminology to fit a particular case, such as “would have achieved a better outcome in the contract negotiations.”

This instruction incorporates the “but for” analysis from WPI 15.01 (Proximate Cause—Definition): whether the client would have fared better but for the attorney's negligence. See Daugert v. Pappas, 104 Wn.2d 254, 257–58, 704 P.2d 600 (1985) (allegation that lawyer committed malpractice by failing to petition for review to Washington Supreme Court); Lavigne v. Chase, Haskell, Hayes & Kalamon, P.S., 112 Wn.App. 677, 683, 50 P.3d 306 (2002) (allegation that lawyer committed malpractice by agreeing to a settlement); Sherry v. Diercks, 29 Wn.App. 433, 437–39, 628 P.2d 1336 (1981) (allegation that lawyer committed malpractice by deciding to not pursue defense and agreeing to default judgment). The jury will normally decide the issue of cause in fact—whether the plaintiff would have prevailed on the merits if a jury had been properly presented with evidence and law at the first trial, but for the negligence of the attorney. Daugert v. Pappas, 104 Wn.2d at 257–64; Taylor v. Bell, 185 Wn.App. 270, 340 P.3d 951 (2014), review denied 183 Wn.2d 1012 (2015).

The difference in outcome between the first case and the “trial within a trial” may not be completely or partially caused by the negligence of the attorney in the first case. For example, the evidence in the malpractice case (the “trial within a trial”) may have been presented more skillfully by the newly hired trial attorney in the second case, resulting in a more favorable outcome without any negligence by the original attorney. It can be difficult to isolate those aspects of the more favorable outcome that were attributable to the attorney's negligence from those aspects that were attributable to other factors. See, e.g., Mallen, 4 Legal Malpractice § 37:38–37:90 (2017 ed.) (discussing, in the sections entitled “Retrial” and “Evidentiary Considerations,” some of the difficulties involved in structuring the “trial within the trial” so that any difference in outcome from the original trial are attributable to the original attorney's errors rather than to other factors).

Proximate cause cannot be based on speculation or conjecture. Daugert v. Pappas, 104 Wn.2d 254, 260, 704 P.2d 600 (1985).

If the issues involve negligence in appellate practice, or if the proximate cause issue requires analysis of how a court would interpret a point of law, then the proximate cause jury instruction should not be given because the proximate cause issue will be decided by the court as a matter of law. Daugert v. Pappas, 104 Wn.2d at 257–62, 704 P.2d 600 (1985); Geer v. Tonnon, 137 Wn.App. 838, 844–50, 852, 155 P.3d 163 (2007); Nielson v. Eisenhower & Carlson, 100 Wn.App. 584, 594–95, 999 P.2d 42 (2000); Brust v. Newton, 70 Wn.App. 286, 290–94, 852 P.2d 1092 (1993) (holding that a jury in a malpractice action may decide proximate cause issues from the underlying dissolution action, even though in the dissolution action those issues would have been decided by a judge, but the jury would not be able to address any issues from the underlying action that would require analysis of legal authorities).

Cases involving negligence in appellate practice can be especially challenging. If an attorney fails to timely file an appeal in a case, then the trial judge in the second case (the one alleging malpractice) must decide whether the appellate court in the original case would have reversed the original trial court decision and remanded for a new trial, and a jury in the second case would need to decide what would have happened in the remanded trial.