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December 15, 2021 Feature

The Judicial Error Defense to Legal Malpractice

Douglas R. Richmond
sorbetto/DigitalVision Vectors via Getty Images Plus

sorbetto/DigitalVision Vectors via Getty Images Plus

Although a judge’s error may be unforeseeable, it is quite risky for a lawyer to fail to consider options that can be pursued to address and undo the impact of the error.

All seasoned trial lawyers have experienced frustrating errors by judges, such as clients’ motions being mistakenly denied, adversaries’ motions being improvidently granted, incorrect evidentiary rulings, and the submission of flawed jury instructions. The factual and legal complexities of cases, heavy caseloads, a lack of law clerk support, and time constraints can all contribute to occasional errors even by very good judges. Regardless of the cause, a judge’s error may have a profound effect on a party’s case.

If a party that loses its case or suffers some other adverse result following a judge’s error thereafter sues its lawyer for alleged professional negligence in conducting the litigation, may the lawyer raise the judge’s error as a complete defense to the client’s claim? On the right facts, the lawyer indeed may do so. As the Utah Supreme Court capsulized the law in Crestwood Cove Apartments Business Trust v. Turner, where an attorney “raised and preserved all relevant legal considerations in an appropriate procedural manner and a court nevertheless commits judicial error, the attorney’s actions cannot be considered the proximate cause of the client’s loss.”1

This article examines the judicial error defense to lawyers’ professional negligence, commonly described as legal malpractice. Of course, as in other types of cases where liability pivots on causation, the success of a judicial error defense is fact dependent.

The Causation Requirement for Liability

A plaintiff suing a lawyer for professional negligence must prove that (1) the lawyer owed the plaintiff a duty; (2) the lawyer breached that duty; and (3) the lawyer’s breach of duty proximately caused the plaintiff to suffer (4) actual damages. Failure to prove any one of these four elements is fatal to the plaintiff’s claim.2 Thus, even if the plaintiff establishes that the lawyer’s conduct fell below the standard of care, liability will not lie unless the lawyer’s breach of duty proximately caused the plaintiff’s claimed damages.3

Analyzing causation in a legal malpractice case involves two separate but related issues. First, there is the question of causation in fact. Second, there is the question of legal or proximate cause.

With respect to causation in fact, a court typically must determine whether “but for” the lawyer’s negligence, the result in the underlying action would have been different.4 Or, phrased another way, the court must decide whether the client would have obtained a better result in the underlying action if the lawyer had exercised the requisite degree of care and skill. Alternatively, causation in fact is determined by applying a “substantial factor” test.5 Applying the substantial factor test, the plaintiff must show that the lawyer’s negligence “was a material element and a substantial factor” in bringing about the plaintiff’s claimed harm.6 The substantial factor test encompasses “but for” causation.7

Generally, the question of what the probable outcome would have been had the attorney acted reasonably is determined by a “trial within a trial” or “case within a case,” in which the court hearing the legal malpractice action decides both whether the lawyer was negligent and what the outcome of the litigation would have been in the absence of negligence.8 The trial-within-a-trial requirement protects against claims based on conjecture and speculation.9 Just as in most other legal malpractice actions, the trial-within-a-trial method may be employed where a lawyer asserts that the unfavorable result about which the client complains is the product of judicial error rather than the lawyer’s negligence.10

Under the trial-within-a-trial approach, the court hearing the malpractice case does not attempt to subjectively determine what the first court would have done; neither the judge nor the jurors from the earlier trial may testify at the new trial as to what they would have done under different circumstances.11 Rather, the court independently determines what reasonably would have been the outcome of the underlying case in the absence of the lawyer’s negligence, based on the applicable law and the related evidence presented during the malpractice trial.12 In short, the jury in the malpractice case substitutes its judgment for that of the jury in the underlying action.13 The purpose of the case-within-a-case or trial-within-a-trial exercise is to determine what the result in the underlying case should have been (an objective standard), not what the result would have been as decided by the judge or jury in the underlying case (a subjective standard).14 This generally requires the court in the legal malpractice case to instruct the jury on the claims in the underlying action in addition to instructing the jury on the elements of legal malpractice.15

If the plaintiff can establish “but for” causation, the question then becomes whether the lawyer’s alleged negligence was the legal or proximate cause of the plaintiff’s harm. The general test for proximate cause is whether the plaintiff’s claimed harm is the natural and probable consequence of the defendant’s alleged negligence.16 In other words, legal or proximate cause effectively distills to foreseeability. As one court framed the issue, a defendant’s actions are the legal cause of the plaintiff’s injury “where a reasonable person in the defendant’s position could foresee the plaintiff’s injury as a likely result of the defendant’s conduct.”17

Legal or proximate cause, like causation in fact, is generally established through the trial-within-a-trial method. By proving that the result of the underlying action would have been different but for the lawyer’s negligence, or that the lawyer’s negligence was a substantial factor in bringing about the plaintiff’s harm, the plaintiff also proves that its damages—the difference between what the result was and what it would have been—were the reasonable and probable consequence of the lawyer’s deficient performance.18

Concurring and Intervening or Superseding Causes

There may be more than one cause of a plaintiff’s claimed harm.19 How multiple causes of a loss are characterized may substantially alter the liability picture. A new and independent cause, often described as an intervening or superseding cause, severs any causal connection between the defendant’s alleged error and the plaintiff’s claimed harm, thereby preventing the plaintiff from establishing proximate cause and, ultimately, liability.20 For a cause to constitute an intervening or superseding cause that breaks the chain of causation and relieves the lawyer-defendant of liability, it (1) must have occurred after the lawyer’s allegedly negligent act, (2) cannot be the consequence of the lawyer’s alleged negligence, (3) must produce a result that would not have otherwise flowed from the lawyer’s alleged error, and (4) must not have been reasonably foreseeable.21 If the cause does not meet all these criteria, it is a concurring cause that leaves intact the causal link between the lawyer’s alleged negligence and the plaintiff’s claimed harm.

In assessing whether a cause broke the causal connection between the defendant’s alleged negligence and the plaintiff’s harm and therefore amounts to an intervening or superseding cause, courts generally focus on foreseeability.22 Thus, “[t]o break the causal connection between an attorney’s negligence and the plaintiff’s harm, [a] judicial error must not be reasonably foreseeable.”23 On the other hand, if the supposedly intervening cause and its probable consequences are a reasonably foreseeable result of the lawyer’s alleged negligence, the cause is a concurring cause rather than an intervening or superseding cause.24 Foreseeability is an intensely fact-specific inquiry that must be determined in light of the surrounding circumstances rather than in the abstract.25

At least initially, a lack of foreseeability would appear to be an insurmountable hurdle for a lawyer asserting a judicial error defense. After all, the mere existence of appellate courts would seem to indicate the foreseeability of trial court errors.26 But while it is foreseeable that a judge may somehow err, lawyers cannot usually predict those issues that a judge will decide incorrectly and those that a judge will get right.27 In summary:

The question then is not whether judicial error is generally foreseeable, but whether the trial court’s error is a reasonably foreseeable result of the attorney’s negligence in light of all existing circumstances. A judicial error is a reasonably foreseeable result of an attorney’s negligence if “an unbroken connection” exists between the attorney’s negligence and the judicial error, such as when the attorney’s negligence directly contributed to and cooperated with the judicial error, rendering the error part of “a continuous succession of events” that foreseeably resulted in the harm.

However, merely furnishing a condition that allows judicial error to occur does not establish the ensuing harm was a reasonably foreseeable result of the defendant’s negligence. If an attorney does not contribute to the judicial error itself and the judicial error is not otherwise reasonably foreseeable in the particular circumstances of the case, the error is a new and independent cause of the plaintiff’s injury if it “alters the natural sequence of events” and “produces results that would not otherwise have occurred.”28

Consistent with this view of causation, courts in a range of jurisdictions have upheld lawyers’ judicial error defenses.29

Although a judge’s error may be unforeseeable, it is quite risky for a lawyer to fail to consider options that can be pursued to address and undo the impact of the error. At least one court has held that lawyers sometimes must pursue appeals from erroneous decisions if they hope to later raise a judicial error defense to legal malpractice allegations.30

This said, as a rule, mandating an appeal by the lawyer to preserve a judicial error defense makes little sense. In most cases, the lawyer will lack standing to pursue an appeal; any appeal must be taken by the client, as the party affected by the ruling. Additionally, mandating such an appeal would also unfairly give the client control over the lawyer’s malpractice defense because, if the client chose not to appeal, it could ostensibly preclude the lawyer’s assertion of the judicial error defense in a later lawsuit. Fortunately, these potential problems are unlikely to surface. First, there is no general appeal requirement in this context.31 Second, the client typically should want relief from an adverse decision and, hence, should want to appeal. Third, the client generally must appeal an erroneous ruling if it hopes to someday sue the lawyer.32 Fourth, a lawyer may raise a client’s failure to appeal as an affirmative defense.33 Finally, a lawyer prevented from appealing an erroneous ruling should be able to successfully argue that as a matter of equity, an appeal requirement cannot be enforced under the circumstances.

Lawyers’ Approach Where a Judge’s Error Is Foreseeable

In some cases, a judicial error may be foreseeable. For example, the court may indicate that it intends to rule in a way that the lawyer believes misapprehends the law. Or, a judge might announce her plan to submit a jury instruction that the lawyer believes misstates the law. In such a case, the lawyer must reasonably attempt to prevent or mitigate the trial court’s embryonic error.34

Where the error will doom the client’s case, the lawyer will have several potential options: provide additional argument or briefing to try to convince the court that its ruling or decision will be erroneous, seek reconsideration of the judge’s decision once made, object to a proposed instruction on the record and propose an alternative instruction, or perhaps pursue an interlocutory appeal or seek an extraordinary writ. The lawyer should consider all options that fit the circumstances. But if one or more of these options are pursued unsuccessfully, the lawyer’s work is not done. Where the client can prevail on the facts even if the court errs on the law, the lawyer must take reasonable steps to demonstrate to the court why the client still wins under the court’s mistaken, but foreseeable, view of the law.35 In other words, in an appropriate case, the lawyer must be prepared to argue in the alternative.

Consider, for example, a hypothetical medical malpractice case in which the judge provides the lawyers with the instruction the judge intends to give to the jury regarding a doctor’s duty to obtain a patient’s informed consent to a medical procedure, and the defense lawyer cannot persuade the judge that the planned instruction is wrong as a matter of law because it misstates a doctor’s duty. If the lawyer has evidence that would prove that the doctor fulfilled the duty erroneously described by the judge, the lawyer must offer that evidence at trial to avoid later malpractice liability.36 Otherwise, a subsequent court may reason that there were two independent causes of the client’s loss: the trial court’s instructional error and the lawyer’s failure to introduce the evidence necessary for the client to prevail on the facts.37

Examining How the Judicial Error Defense Has Been Applied in Practice

Two cases in which the judicial error defense was raised—once successfully and once unsuccessfully—illustrate the issues that surround the defense.

Texas Supreme Court decision in Stanfield v. Neubaum. Stanfield v. Neubaum38 is arguably the leading case on the judicial error defense. Stanfield arose out of a lawsuit by the Buck Glove Co. (Buck) against Jon and Barbara Neubaum for usury. Buck alleged that the Neubaums loaned money at usurious interest rates through their agent, Marvin March. The Neubaums hired Thomas Stone and Brenton Stanfield of Stone & Associates (collectively Stone) to defend them. Stone filed an answer, asserted counterclaims, and joined March as a third-party defendant. After Buck sent a usury demand letter to the Neubaums in December 2007, Stone responded with a usury cure letter and amended the Neubaums’ answer to include the affirmative defenses of usury cure and bona fide error. Stone subsequently moved for summary judgment based on the usury cure letter, but the trial court denied the motion.39

Stone did not press either the bona fide error or usury cure defenses at trial. Rather, Stone attacked Buck’s case in chief, offering evidence and arguing that (1) March was not functioning as the Neubaums’ agent when he made loans to Buck, and (2) the Neubaums were the victims of a Ponzi scheme perpetrated by March and Buck.40 Significantly, over Stone’s objection that no evidence supported a determination that March was the Neubaums’ agent, the trial court instructed the jury on agency.

Applying this instruction, the jury found that March defrauded the Neubaums, but further found that the Neubaums loaned money to Buck at usurious interest rates through March, as their agent. Based on the jury’s verdict, the trial court entered a $4 million judgment for Buck against the Neubaums and awarded the Neubaums slightly over $150,000 on their counterclaim against Buck.41

In a posttrial motion, Stone attacked the judgment on several grounds, including (1) the jury’s finding that March defrauded the Neubaums necessarily precluded the jury’s finding that the Neubaums were guilty of usury because the usury claim was based solely on an agency theory; (2) the evidence was legally insufficient to support a usury finding; (3) no evidence supported the apparent authority jury instruction; and (4) the usury cure letter precluded liability as a matter of law. The trial court denied the motion.42

The Neubaums hired new counsel to appeal the adverse usury judgment. The appellate court reversed the trial court based on legally insufficient evidence that March made loans to Buck as the Neubaums’ agent, which was an essential element of the usury claim. In the end, the Neubaums recovered over $150,000 on their counterclaim but paid their appellate counsel over $140,000 to favorably resolve the case.

The Neubaums were sore winners and sued Stone for malpractice. They alleged that Stone’s negligent performance at trial led to an adverse judgment that required an expensive and otherwise unnecessary appeal. They asserted that Stone erred by (1) failing to present evidence of the usury cure letter and not requesting a jury question on that issue, (2) failing to present evidence of bona fide error and not requesting a related jury instruction, and (3) failing to designate an expert to explain how the bank records admitted at trial revealed a Ponzi scheme. The Neubaums did not argue that Stone failed to properly present their agency defense or contributed to the trial court’s failure to correctly rule on that issue. Rather, they contended that the trial court’s error would have been immaterial but for Stone’s negligence in other respects.43

Stone moved for summary judgment, arguing that the appellate court’s ruling vindicated its trial strategy and established that the Neubaums would have won on the usury claim had the trial court not erred. Stone pointed out that it properly preserved the agency issue at trial, which enabled the appellate court to correct the error. In short, Stone argued that the trial court’s error was the sole cause of the Neubaums’ claimed damages. The trial court in the malpractice case agreed and awarded Stone summary judgment.44

The Neubaums appealed this ruling, and the court of appeals reversed. The court of appeals concluded that Stone required expert testimony supporting its position to prevail at summary judgment and, because it had offered none, summary judgment was inappropriate. The court of appeals declined to consider whether judicial error can be a superseding cause that blocks proximate cause.45 Fighting on, Stone successfully petitioned the Texas Supreme Court for review, arguing that the trial court’s error was “a new and independent cause of the Neubaums’ harm” that entitled the firm to summary judgment.46

The Neubaums countered that judicial error can never be an intervening or superseding cause and, besides, the trial court’s error was immaterial because of Stone’s deficient trial decisions that might have circumvented the unfavorable judgment. So while Stone “may have provided a belt, . . . they were nevertheless harmed by [Stone’s] failure to employ suspenders.”47 But the Texas Supreme Court rejected this argument as conflating the separate elements of breach and causation, noting “an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other.”48 In other words, even if the Neubaums could show that the erroneous usury judgment would not have occurred in the absence of Stone’s negligence, they would have only raised a fact question regarding “but for” causation; that is, whether Stone’s negligence created a condition that made the harm possible. They would not have established that “the negligent act or omission was a substantial factor in bringing about the harm at issue.”49

The Stanfield court concluded that under the circumstances, the trial court’s judicial error was a superseding cause of the adverse judgment and the Neubaums’ ensuing appellate litigation costs. In reaching this determination, the court concluded that the trial court’s error of law “‘alter[ed] the natural sequence of events’ and ‘produce[d] results that would not otherwise have occurred.’”50 Thus, while it could fairly be argued that Stone’s alleged negligence, including failing to call an expert to testify at trial, “may have ‘created a condition’ that allowed the Neubaums’ injury to occur, . . . it ‘did not actively contribute in any way to the injuries involved in this suit.’”51 The judge’s error “was not a reasonably foreseeable result of [Stone’s] negligence in view of all the undisputed facts at the time it occurred.”52

California court decision in Lombardo v. Huysentruyt. Lombardo v. Huysentruyt53 was rooted in a probate dispute. In May 1995, 90-year-old Paul Winters established a trust, naming as cotrustees himself and his new wife, Regina Fellman. The trust provided that if Fellman predeceased Winters, upon Winters’s death the trust assets would be distributed to Diane Mirviss, Fellman’s adult daughter from a prior marriage. Winters reserved the right to amend or terminate the trust.54

In May 1996, Winters was diagnosed with several ailments, including dementia. Fellman soon petitioned for a conservatorship of Winters’s person and estate and sought orders to have Mirviss replace Winters as cotrustee and to restrict Winters’s power to amend or revoke the trust without prior court approval. The probate court granted these orders and replaced Fellman as conservator with Barbara deVries. The probate court also ordered that “[d]uring the pendency of these proceedings, the conservatee shall not have the power either to amend or to revoke The Paul J. Winters Trust, U/T/A dated June 23, 1995, without the prior approval of this Court.”55

In August 1997, Fellman died of cancer. Mirviss thus became the sole trustee and trust beneficiary. After Winters told deVries that he wanted to change his trust, she sought a court-appointed lawyer for him. Kurt Huysentruyt accepted the appointment.

Huysentruyt met with Winters twice in early September 1997. Winters insisted that he did not want Mirviss to act as successor and trustee of the trust or to benefit from his estate and remained adamant on these points until his death. Huysentruyt knew Winters to be approaching death’s door and told him that he needed to settle on his final estate plan. Huysentruyt knew about the order restricting Winters’s power to amend the trust and had never seen an order like it.

He understood from the order that the court would prefer application be made to the court for authority to amend before a trust amendment was executed, although he felt the order was ambiguous as to whether court approval would be required before an amendment was signed and he did not think the court would “refuse to inquire into the circumstances of his signing the trust amendment prior to obtaining court approval.”56

In the subsequent malpractice litigation, the plaintiffs’ expert, John Hartog, would testify that the order was a new one on him and “characterized it as ‘unique’ and ‘ambiguous.’”57 One of Huysentruyt’s experts, Barbara Jagiello, had not seen an order like it either and found the order “confusing,” but saw nothing to suggest that the court would not consider the validity of a testamentary trust after the trustor’s death.58 Huysentruyt’s other expert witness, Bruce Friedman, “found the order ‘astonishing.’”59

Between mid-October and mid-November 1997, Winters formulated a list of trust beneficiaries to replace Mirviss. On November 24, 1997, deVries told Huysentruyt that Winters had had a cardiac event, spurring Huysentruyt to complete the trust amendment. On November 26, he prepared the amendment that Winters requested, providing for equal distribution of the trust assets to John Hult, Pat Lombardo, Mary Dorcy, and Albert and Maria Winters. Huysentruyt tried to get Winters to sign the amendment the same day, but Winters was angry about something and refused to see him. A declining Winters finally signed the amendment on December 5. Winters died on December 14.

In mid-January 1998, Huysentruyt sought court approval of the trust amendment. Mirviss petitioned to invalidate the amendment. In April 1998, the probate court denied Huysentruyt’s petition for approval and granted Mirviss’s petition, holding that the trust amendment was invalid and void because it was executed without prior court approval.60 The beneficiaries of the amended trust appealed the probate court’s decision, but while the appeal was pending, they settled with Mirviss for 55 percent of the trust assets. After deducting attorney fees, the beneficiaries received about $380,000 from Winters’s $1.2 million estate.61

The beneficiaries sued Huysentruyt for malpractice. They alleged that he had failed to take the steps necessary to cause the trust amendment to become effective upon Winters’s death by not applying for court approval promptly upon receiving Winters’s instructions to name them as beneficiaries, failing to immediately prepare the amendment, failing to swiftly present the prepared amendment to Winters for execution, failing to immediately apply for court approval after Winters executed the amendment, and not applying for an order to shorten the time to have the court consider a petition for approval on an emergency basis.62

The legal malpractice case went to trial in February 2000. After considering the parties’ motions in limine, however, the court concluded that the probate court had erred in ruling that the trust amendment was invalid.63 The court reasoned that

because a court “is required to interpret an order to maintain its validity and constitutionality if it is possible,” a reasonable court would have interpreted the order “in such a way that it did not limit the testamentary capacity of Mr. Winters” and would have held a hearing “to at least explore the circumstances surrounding the proposed amendment” either before or after Winters’ death.64

The court doubted whether Huysentruyt’s alleged negligence could have caused any damages because the probate court should have held a hearing regardless. The court rejected as speculative the beneficiaries’ argument that Huysentruyt’s negligence could still be proved because the probate court’s erroneous ruling was foreseeable.65 The court then nonsuited the case.

On appeal, the beneficiaries contended that the trial court erred in applying the judicial error defense. They argued that the probate court ruling could constitute a superseding cause only if the trial court’s error was not reasonably foreseeable, which posed a question of fact for the jury.

The Lombardo court quickly determined that it did not need to decide whether the trial court was correct to find that the probate court’s ruling on the trust amendment was erroneous because factual questions should have precluded the nonsuit.66

[The beneficiaries] offered evidence . . . that a reasonable attorney confronted with the conservatorship order . . . would have taken steps before execution of the trust amendment to avoid the result reached in the probate court. Specifically, [the beneficiaries’] expert testified . . . that [Huysentruyt] violated the standard of care by not filing a petition for instructions to determine the proper interpretation of the conservatorship order; not requesting the court to allow Winters to sign the trust amendment subject to court approval after execution; not seeking approval of the amendment more quickly after it was signed; and generally not acting with greater dispatch in handling the amendment. [The beneficiaries] argue that the proper inquiry for the trial court was whether they would have prevailed in the probate court if [Huysentruyt] had taken any of these steps. For example, if [Huysentruyt] had requested clarification, would a reasonable court have construed the conservatorship order to permit the amendment Winters executed? If [Huysentruyt] had requested permission from the court for Winters to sign the amendment, subject to subsequent approval, would a reasonable court have granted the request? If a reasonable court would have responded to such requests by allowing the amendment, [Huysentruyt’s] failure to take these steps would be a substantial factor in causing [the beneficiaries’] injury.67

After considering some additional issues, the Lombardo court reversed the trial court’s judgment for Huysentruyt and remanded the case for further proceedings.68

Analysis of differing rulings in Stanfield and Lombardo. The difference in the outcomes between Stanfield and Lombardo is easily explained by the comparative foreseeability of the lower courts’ errors. In Stanfield, the court’s decision to submit a jury instruction on agency was not foreseeable given the evidence presented at trial. Stone did not do anything to contribute to the court’s erroneous decision to submit the instruction and, in fact, objected to the instruction and preserved the objection for a successful appeal. In Lombardo, on the other hand, Huysentruyt’s failure to challenge or seek clarification of the probate court’s troubling conservatorship order in a timely fashion, or to seek the probate court’s prior approval of the trust amendment, actively contributed to the beneficiaries’ loss. As a result, the probate court’s legal error was not an intervening or superseding cause of the loss.


Judicial error is seldom raised as an affirmative defense in legal malpractice cases arising out of underlying litigation, but it is a potentially valuable one. Although an intervening, superseding causal event can be difficult to prove, lawyers must keep this defense in mind. Unfortunate and unexpected court rulings are always a possibility, and lawyers generally should not be asked to pay a malpractice price for them.


1. 164 P.3d 1247, 1255 (Utah 2007).

2. Duncan v. Dempsey, 547 S.W.3d 815, 820 (Mo. Ct. App. 2018); see also Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (“If the plaintiff does not provide sufficient evidence to meet all of these elements, the claim fails.”).

3. In re Est. of Powell, 12 N.E.3d 14, 20 (Ill. 2014); Dawson v. Schoenberg, 10 N.Y.S.3d 577, 578 (App. Div. 2015); see, e.g., Panos v. Eisen, 75 N.Y.S.3d 69, 71 (App. Div. 2018) (“Since the plaintiff failed to raise a triable issue of fact as to whether the defendants’ alleged breach of the duty of care proximately caused him to suffer actual and ascertainable damages, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.”).

4. Hunter v. Keck, 600 S.W.3d 109, 111 (Ark. Ct. App. 2020) (quoting S. Farm Bureau Cas. Ins. Co. v. Daggett, 118 S.W.3d 525, 530 (Ark. 2003)); Premium Invs., LLC v. Lowther Johnson, Att’ys at L., LLC, 575 S.W.3d 744, 751 (Mo. Ct. App. 2019).

5. Huang v. Brenson, 7 N.E.3d 729, 735 (Ill. App. Ct. 2014); see Kumaraperu v. Feldsted, 187 Cal. Rptr. 3d 583, 589 (Ct. App. 2015) (stating that California has adopted the substantial factor test).

6. Huang, 7 N.E.3d at 735.

7. Yanez v. Plummer, 164 Cal. Rptr. 3d 309, 313 (Ct. App. 2013).

8. Kiribati Seafood Co., LLC v. Dechert LLP, 83 N.E.3d 798, 805 (Mass. 2017).

9. Viner v. Sweet, 70 P.3d 1046, 1052 (Cal. 2003).

10. Crestwood Cove Apts. Bus. Tr. v. Turner, 164 P.3d 1247, 1254 (Utah 2007).

11. Kiribati, 83 N.E.3d at 805.

12. Id.

13. Leibel v. Johnson, 728 S.E.2d 554, 556 (Ga. 2012) (quoting Cook v. Cont’l Cas. Co., 509 N.W.2d 100, 105 (Wis. Ct. App. 1993)).

14. Ronald E. Mallen, Legal Malpractice § 37.87, at 1767 (2020).

15. Osborne v. Keeney, 399 S.W.3d 1, 10–12 (Ky. 2012).

16. Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 563 (Mo. 2014).

17. Huang v. Brenson, 7 N.E.3d 729, 735 (Ill. App. Ct. 2014).

18. See Nail, 436 S.W.3d at 562 (discussing the “but for” test).

19. Kiribati Seafood Co., LLC v. Dechert LLP, 83 N.E.3d 798, 807 (Mass. 2017).

20. Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016).

21. Mallen, supra note 14, § 8:25, at 1080.

22. See, e.g., Indymac Venture, LLC v. Leu Okuda & Doi, Att’ys at L., No. 14-00263 KJM, 2018 WL 8303379, at *12–13 (D. Haw. Jan. 31, 2018) (concluding that the lawyer’s negligence contributed to the judicial error and that the erroneous decision was a reasonably foreseeable result of the lawyer’s negligence); SKMDV Holdings, Inc. v. Green Jacobson, P.C., 494 S.W.3d 537, 546 (Mo. Ct. App. 2016) (“An intervening cause is not foreseeable.”).

23. Stanfield, 494 S.W.3d at 99.

24. Id. at 98 (quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 857 (Tex. 2009)).

25. Id. (quoting Tex. & Pac. Ry. Co. v. Bigham, 38 S.W. 162, 164 (Tex. 1896)).

26. Lombardo v. Huysentruyt, 110 Cal. Rptr. 2d 691, 700 (Ct. App. 2001).

27. Stanfield, 494 S.W.3d at 100; see also Simko v. Blake, 506 N.W.2d 258, 259 (Mich. Ct. App. 1993) (making this point more colorfully).

28. Stanfield, 494 S.W.3d at 100 (footnote and citations omitted).

29. See, e.g., Carson v. Kanazawa, No. 14-00544 LEK-KSC, 2017 WL 3444764, at *25–26 (D. Haw. Apr. 30, 2017) (involving an error by an arbitrator that the reviewing state court failed to correct); Kasem v. Dion-Kindem, 179 Cal. Rptr. 3d 711, 716 (Ct. App. 2014) (finding that judicial error by the underlying trial court negated the lawyer’s alleged malpractice where the trial court refused to take notice of certain statutes as the lawyer requested and as the California Evidence Code plainly required); McHenry Sav. Bank v. Cortina, No. 2-18-0901, 2019 WL 4390644, at *5–6 (Ill. App. Ct. Sept. 11, 2019) (holding that the lawyer was not liable where he presented all the necessary evidence to the trial court but the trial court ruled adversely “on a legally unsound basis”); Green v. Papa, 4 N.E.3d 607, 616–17 (Ill. App. Ct. 2014) (noting that the lawyer could have done nothing to alter the lower court’s erroneous factual and legal conclusions); Huang v. Brenson, 7 N.E.3d 729, 737 (Ill. App. Ct. 2014) (deciding that the trial court’s error was a superseding cause where the malpractice plaintiff did not contend that the lawyer contributed to the error, the lawyer preserved the error for appeal, and the lawyer was “vindicated on appeal”); Iliescu v. Hale Lane Peek Dennison & Howard P.C., No. 76146, 2020 WL 406781, at *6 (Nev. Jan. 23, 2020) (finding that the trial court’s error extinguished proximate cause); Crestwood Cove Apts. Bus. Tr. v. Turner, 164 P.3d 1247, 1258 (Utah 2007) (concluding that the trial court’s clear error caused the client’s loss).

30. Am. Inter-Fid. Exch. v. Hope, No. 17 C 7934, 2019 WL 4189657, at *2 (N.D. Ill. Sept. 4, 2019) (applying Illinois law).

31. Id.

32. See, e.g., Alderson v. Bergdahl, No. 28790-4-III, 2011 WL 3503209, at *4 (Wash. Ct. App. Aug. 11, 2011) (“[T]he remedy for the [trial court’s error] was to appeal the ruling. The Aldersons did not do so. An attorney malpractice action is not an insurance policy against judicial error. An aggrieved party must challenge the erroneous ruling by appeal rather than sue counsel for the judge’s error.” (footnote omitted)).

33. See Hewitt v. Allen, 43 P.3d 345, 348 (Nev. 2002) (noting that a client’s failure to appeal is often raised under theories of abandonment or failure to mitigate damages).

34. Kiribati Seafood Co., LLC v. Dechert LLP, 83 N.E.3d 798, 806 (Mass. 2017); see also Skinner v. Stone, Raskin & Israel, 724 F.2d 264, 266 (2d Cir. 1983) (applying New York law in a case where the lawyers failed to head off the entry of a default judgment they knew was coming); Temple Hoyne Buell Found. v. Holland & Hart, 851 P.2d 192, 198 (Colo. App. 1992) (stating that lawyers owe a duty to their clients to anticipate “reasonably foreseeable risks”).

35. Kiribati, 83 N.E.3d at 806.

36. Id.

37. Id. at 807.

38. 494 S.W.3d 90 (Tex. 2016).

39. Id. at 94.

40. Id.

41. Id.

42. Id. at 94–95.

43. Id. at 95.

44. Id.

45. Id. at 95–96.

46. Id. at 102.

47. Id.

48. Id. (quoting Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004)).

49. Id. (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299 S.W.3d 106, 122 (Tex. 2009)).

50. Id. at 103 (alterations in original) (quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 857 (Tex. 2009)).

51. Id. (quoting Bell v. Campbell, 434 S.W.2d 117, 120–22 (Tex. 1968)).

52. Id.

53. 110 Cal. Rptr. 2d 691 (Ct. App. 2001).

54. Id. at 695.

55. Id. (quoting the order).

56. Id.

57. Id.

58. Id.

59. Id.

60. Id. at 696.

61. Id.

62. Id.

63. Id.

64. Id. at 696–97.

65. Id. at 697.

66. Id. at 697–98.

67. Id. at 699–700.

68. Id. at 706.

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Douglas R. Richmond is a managing director at Aon Professional Services. Opinions expressed here are the author’s alone and do not necessarily reflect the views of Aon or its clients.