Archive for September, 2011


Proximate Cause Standards Upheld in Recent Decision

In Quarterman v. Cullum, the Court of Appeals upheld summary judgment on a legal malpractice claim arising out of a probate court litigation.  The attorney in the case had failed to take a deposition of a relevant witness, and the plaintiff claimed that said failure caused the probate court to dismiss the Plaintiff’s caveat of his mother’s will.  The Court of Appeals upheld the lower courts summary judgment.

Although the Plaintiff had an expert affidavit that his attorney failed to comply with a discovery order which “doubtlessly prejudiced the Plaintiff,” there was no evidence of how the failure to obtain more discovery changed the outcome of the litigation.

[Plaintiff] might have been prejudiced in some manner by the failure to depose [a witness].  However, [Plaintiff] has not produced any evidence regarding topics that would have been addressed during the deposition [or] what testimony [Plaintiff] would have been addressed during the deposition [or] what testimony [Plaintiff] intended to elicit during the deposition. 

[Some brackets in original.]  The court went on to explain that there was no argument or evidence of how the possible testimony would have changed the outcome of the underlying case, closing that “mere speculation and conjecture cannot serve as the basis for establishing proximate cause.” 

To establish proximate cause, [Plaintiff] must show that but for [the attorney’s] error, the outcome would have been different; any lesser requirement would invite speculation and conjecture.  [The defendant] is entitled to summary judgment if he shows that there is an absence of proof adduced by [the plaintiff] on the issue of proximate cause.

[Some brackets in original.]  Many claimants argue to trial courts that merely pointing out evidence of a breach of the standard of care creates a jury issue for a legal malpractice case.  This is not the case, especially when the plaintiff cannot establish how the original litigation or transaction would have turned out differently.  The difficulty of presenting evidence on causation does not create a fact issue that precludes summary judgment.  To the contrary, the plaintiff have the obligation to present evidence of how the alleged negligence would have changed the outcome of the litigation or transaction at issue.

The failure of evidence supports summary judgment for the attorney.  The Court of Appeals continued to support this basic concept with its latest opinion.

Kim Jackson Cleans Up The Mess

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