What Clients are Owed: Cautionary Observations on Lawyers and Loss-of-a-Chance

Abstract:     
Loss-of-a-chance doctrine has been developed primarily in the context of medical malpractice law. When employed, it eases the plaintiff's burden of proving causation. Instead of having to prove that the doctor's neglect of duty more likely than not was a but-for cause of the plaintiff's injury, the loss-of-a-chance plaintiff only has to prove that the malpractice made it somewhat more likely that she would suffer an injury. Several prominent commentators have recently called for application of loss-of-a-chance to legal malpractice, primarily out of concern over the difficulty a legal malpractice plaintiff faces in proving that, but for her lawyer's carelessness, she probably would have prevailed in the matter in which she was being represented. These remarks attempt to explain why, despite the intuitive appeal of the doctrine on grounds of both fairness and deterrence, courts ought to be wary about transplanting it into the law of legal malpractice.

Keywords: Torts, Negligence, Cause, Chance, Malpractice, Duty, Risk

Accepted Paper Series