Your client had a great case. Or so you thought – just before the jury came back and found for the opposing party. Your disgruntled client is now looking to you to make her whole. Are you on the hook for the disappointing results?

Of course, the answer depends on whether you committed malpractice; that is, whether you used the same skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks they undertake.[1] Sometimes, this question is easily answered.

The challenging, and perhaps more important, question is whether your mistake caused damage. As the saying goes, to err is human; and lawyers are humans. Perfection is unattainable and mistakes can happen. The vast majority of those mistakes, however, are harmless. They neither hurt the client nor the client’s case.

Without Causation, There Can be No Actionable Malpractice

To avoid making lawyers guarantors of their client’s case, a suing client must be able to prove that attorney’s alleged negligence caused damage to the client.[2] Causation is a fundamental element of a claim of legal malpractice.[3] If the attorney’s conduct did not cause harm, the client cannot prevail on a legal malpractice suit. “The negligence of counsel must affect the viability of the client’s interest and be shown to do so.”[4]

Causation has two components: cause in fact and legal causation. Cause in fact is “but for” causation, meaning that without the attorney’s alleged negligence, the client would have obtained a more favorable outcome. It is a direct link between the negligence and the harm. Legal cause, on the other hand, is essentially a question of foreseeability; the negligence was a proximate cause of harm if a reasonable person would see the outcome as a likely result of his conduct.[5]

To do this, the client must present what is called a “case within a case” in which the merits of the underlying claim are addressed.[6]  In what can best be described as a ‘legal postmortem,’ the client has to go back and re-try the underlying case assuming different facts. Part of the challenge, of course, is that doing so necessarily requires a certain degree of speculation. The client is, after all, trying to prove that had the attorney acted differently, a different outcome would have followed. Generally, in order to prove this, the client will need an expert witness.

Judgmental Protection

Lawyers are also entitled to something call “judgmental protection.” This legal principle affords attorneys immunity when their tactical or strategic decisions do not pan out as expected. As the Nebraska Supreme Court has explained[7],

“an attorney who acts in good faith and with an honest belief that his or her actions are well founded in the law and in the best interests of his or her client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his or her state and on which reasonable doubt may be entertained by well-informed lawyers. “A lawyer would need a crystal ball, along with his library, to be able to guarantee that no judge, anytime, anywhere, would disagree with his judgment or evaluation of a situation.”

Litigation is Risky

The bar is admittedly a high one. But it is also a necessary one. Litigation is inherently risky, and lawyers are not fortune tellers or mind controllers. Any number of events may occur which are beyond the attorney’s control, yet still negatively affect the client’s suit — a judge, who was otherwise favorable to your client’s position, retires, or is appointed to a higher court; a key witness unexpectedly dies; the judge changes his mind on a key issue, and the client decides to settle rather than risk an adverse outcome and years of an appeal; the legislature changes the law. All a client can expect and demand is that his or her attorney act prudently in light of the facts and circumstances as they exist at the time. So long as the attorney does this, the law does not make him a guarantor of the outcome, and the client bears the risk of an adverse result.


[1] Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 578 N.W.2d 446 (1998).

[2] Young v. Govier & Milone, L.P., 286 Neb. 224, 237, 835 N.W.2d 684, 694 (2013); Wolski v. Wandel, 275 Neb. 266, 271, 746 N.W.2d 143, 149 (2008).

[3] Rodriguez v. Nielsen, 264 Neb. 558, 561, 650 N.W.2d 237, 240 (2002).

[4] Staman v. Yeager & Yeager, P.A., 238 Neb. 133, 136, 469 N.W.2d 532, 535 (1991).

[5]  Bellino v. McGrath N. Mullin & Kratz, PC LLO, 274 Neb. 130, 149, 738 N.W.2d 434, 449 (2007).

[6] Bowers v. Dougherty, 260 Neb. 74, 615 N.W.2d 449 (2000).

[7] Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 705, 578 N.W.2d 446, 451–52 (1998) (internal citations omitted). But see Wood v. McGrath, N., Mullin & Kratz, P.C., 256 Neb. 109, 589 N.W.2d 103 (1999) (Doctrine of judgmental immunity does not apply to an attorney’s failure to inform a client of unsettled legal issues relevant to a settlement; rather, whether an attorney is negligent for such a failure is determined by whether the attorney exercised the same skill, knowledge, and diligence as attorneys of ordinary skill and capacity commonly possess and exercise in the performance of all other legal tasks.).