Legal Question in Legal Malpractice in California

I have a question about causation in legal malpractice. As an example, if an attorney knows for certain that DNA evidence will clear someone, and they don't order the DNA and let it be lost, so that they get to try the case... And, their failure to have evidence causes that person to lose, isn't that malpractice? I give this example, because I want to know on a similar principle, if an attorney knows there is a record that they can ask for from a title company, and that record will clear the client, and he fails to ask for that record to let a case continue, does this fall under causation? What happened is the documentary record from the title company would have shown a recording was attempted on an earlier date, and that recording was missed and not filed with the recorder's office, as was intended. The attorney agreed and confirmed that seeing the proof to record and signatures, would completely straighten out an issue that had arisen. Yet, knowing this, the attorney did not ask for the document from the title company, he didn't order it, he took no depositions, and due to not having this document of proof, a case ensued with no records or defense, and the defendant was scorched and lost several hundred thousand dollars. Is this causation? It would have shown the document was notarized, and ready to go, had the document not been lost by the title provider. If you take this data as all you know of the case and all known facts, wouldn't the attorney's failure to even seek to obtain or order this vital document he knew about, fall under the principle of causation that resulted in damages? Some views could be the case would have happened anyway, and the attorney was not responsible for causation, because later events and a subsequent recording a year later was disputed for various reasons (altho false) that the other parties made up. However, the earlier document would have cleared everything up, had the attorney asked for it. Or, the document would have provided so much help that it would have diminished and likely dismissed the onslaught that happened after. Thank you. Any definitions or direction would assist us.

Asked on 10/03/09, 12:48 am

2 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

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If, but for the attorney's negligence, you can prove you would have won the case, you might have a case for malpractice. You would first have to prove you would have won before you get to the damages caused by the attorney. It's a difficult and costly task.

Answered on 10/03/09, 6:38 pm

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