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Viner v. Sweet - 30 Cal. 4th 1232, 135 Cal. Rptr. 2d 629, 70 P.3d 1046 (2003)


In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.


Plaintiffs Michael Viner and his wife, Deborah Raffin Viner, brought a malpractice action in California state court against defendants Charles A. Sweet, a corporate transactional lawyer, and his law firm, alleging seven claims of malpractice pertaining to the representation of plaintiffs with respect to the sale of plaintiffs' company and an employment termination agreement. The jury found defendants liable on all seven claims of malpractice. Defendants filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial, on the ground that the trial court failed to instruct the jury that plaintiffs had the burden to prove that they would have received a better deal "but for" Sweet's negligence. The trial court denied both motions. On appeal, the appellate court reduced the damages award but otherwise affirmed the judgment, ruling that the "but for" test of causation did not apply to transactional malpractice. Defendants appealed.


Did the "but for" test of causation apply to transactional malpractice?




The Supreme Court of California reversed the appellate court's judgment and remanded the matter to that court for further proceedings. The court held that plaintiffs were required to prove that a more favorable result would have been obtained "but for" Sweet's alleged negligence. There was nothing distinctive about transactional malpractice to justify a relaxation of, or departure from, the requirement in negligence cases that plaintiff establish causation by showing either: (1) that but for the negligence, the harm would not have occurred, or; (2) that the negligence was a concurrent independent cause of the harm. Since the present case did not involve concurrent independent causes, the case was governed by the "but for" test. 

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