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Causation and "Legal Certainty" in Legal Malpractice Law

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty. Author. South Texas Professor of Law at St. Mary’s University School of Law, San Antonio, Texas. Professor Johnson has served as a Fellow at the United States Supreme Court and a Fulbright Scholar in China, Romania, and Burma. An elected member of the American Law Institute, he earned a B.A. at St. Vincent College, a J.D. at the University of Notre Dame, an LL.M. at Yale University, and an executive LL.M. at the London School of Economics and Political Science. By appointment of the Texas Supreme Court, Professor Johnson serves as a member of the Texas Committee on Disciplinary Rules and Referenda. Preparation of this Article was ably assisted by Professor Johnson’s research assistant Robert W. Derner.