Duke Law Journal: Krista M. Enns, Can A California Litigant Prevail In An Action For Le... - 0 views
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Part IV acknowledges the tension between the difficulty of proving causation in legal malpractice actions and one of the goals of legal malpractice, which is to allow litigants recovery when their attorneys are negligent. The part then considers the "loss of chance" doctrine, which is used in medical malpractice cases, as a possible alternative to the rigorous "but for" causation requirement in legal malpractice. Since a shift away from the "but for" standard is likely to cause more problems than it solves, and because adequate protections already exist for litigants, Part IV argues that the current causation requirements should be maintained for litigants who allege that they suffered an injury during Supreme Court oral argument. [*pg 115]
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Nye Frank on 09 Apr 09that lawyers with previous experience before the Court prevail "substantially more often."57 Data from the Solicitor General's office also support this theory http://www.law.duke.edu/shell/cite.pl?48+Duke+L.+J.+111
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The opportunity to convince [the Justices] of the merits of your position is at its highpoint."47
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See 3 MALLEN & SMITH, supra note 15, ยง 29.41, at 772 ("In presenting the underlying appeal in the subsequent legal malpractice action, the parties must specify the issues that should have been urged in the underlying action."). Failure to specify the issues is a failure to prove causation. See id. 146. See infra note 151 and accompanying text. 147. See Smith v. Lewis, 530 P.2d 589, 595 (Cal. 1975). 148. See Lysick v. Walcom, 258 Cal. App. 2d 136, 153 (Ct. App. 1968). The attorney's action need not be the sole cause of the client's loss, just a substantial factor. See id. at 153 n.7. 149. See infra note 213 and accompanying text.
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that lawyers with previous experience before the Court prevail "substantially more often."57 Data from the Solicitor General's office also support this theory http://www.law.duke.edu/shell/cite.pl?48+Duke+L.+J.+111