Shifting the Causation Burden of Proof in Legal Malpractice Actions: Courts Are Applying Doctrines Taken from Other Types of Cases and Placing the Burden on Defendant Attorneys on the Basis of Public Policy Considerations

THE well-known elements of a cause of action for legal malpractice are: (1) attorney's duty to use skill, prudence and diligence that others in his or her profession commonly possess and exercise; (2) acts that constitute a breach of that duty; (3) injury, damage or loss to plaintiff; and (4) a causal connection between conduct constituting breach of duty and injury, damage or loss. The plaintiff usually has burden of establishing each of these essential elements, including causation. (1) Clients alleging that their attorney was negligent in connection with litigation have burden of proving that damages resulted, this burden involving, usually, difficult task of demonstrating that attorney's negligent investigation, advice or conduct of client's affairs was a substantial factor in causing an unfavorable result, including loss of client's meritorious claim. Proof that client would have prevailed or achieved a better result in underlying action generally requires trial of a suit within a that is, a determination of merits of underling action in malpractice trial. This is sometimes also referred to as within requirement. (2) BUT NOW THERE'S A SHIFT When attorney's alleged negligence impacts an underlying personal injury or products liability suit, courts in California have begun to wrestle with proper application of doctrines that have been applied in non-legal malpractice contexts. In negligence and products liability cases, for example, doctrine has evolved that burden of proof on issue of may be shifted to when demanded by public policy considerations. (3) On rare occasions, California Court of Appeal stated in National Council Against Health Fraud Inc. v. King Bio Pharmaceuticals Inc., the courts have altered normal allocation of burden of proof. (4) As California Supreme Court stated in Haft v. Lone Palm Hotel: [T]he shift of burden of proof ... may be said to rest on a policy judgment that when there is a substantial probability that a defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove proximate causation conclusively, it is more appropriate to hold liable than to deny an innocent plaintiff recovery, unless can prove that his negligence was Not a cause of injury. (5) The essential principle underlying narrow exception to usual allocation of proof in negligence and product liability actions is that burden of proving an element of a case is more appropriately borne by party with a greater access to information. For example, in Harris v. Truck Lines Inc., California Supreme Court stated that a defendant who is in a better position to discover and preserve ... evidence should not be permitted to profit from plaintiff's inability to produce it. (6) SOURCE OF THE SHIFT There is no definitive or general rule that clarifies circumstances under which in a personal injury or products liability case must prove non-causation of plaintiff's injuries. The most commonly cited formulation of factors to consider is in McGee v. Cessna Aircraft Co., in which California Court of Appeal quoted following reasons from California Law Revision Committee's comment to Section 500 of state's Evidence Code, that a shift in normal allocation of burden of proof is based on consideration of a number of factors: knowledge of parties concerning particular facts, availability of evidence to parties, most desirable result in terms of public policy in absence of proof of particular fact, and probability of existence or non-existence of fact. (7) Generally, in relatively few non-legal malpractice cases where burden of proof for was shifted, courts found that it was impossible for plaintiff to prove its case otherwise. …