The Standard of Proof of Causation in Legal Malpractice Cases

18 Pages Posted: 21 Mar 2009

See all articles by Erik M. Jensen

Erik M. Jensen

Case Western Reserve University School of Law

Abstract

This note argues that the use of a but for standard of causation in legal malpractice cases - i.e., that the plaintiff must show that but for the malpractice he or she would have prevailed in the underlying action - is too stringent, making recovery unreasonably difficult. The note therefore argues for implementation of a lost substantial possibility of recovery standard. This is just a student note, and an old one at that, but a lot of courts and commentators have cited it. In any event, modesty and self-restraint seem to play little role when authors are deciding what to post on SSRN.

Keywords: But for Standard of Causation, Legal Malpractice, Lost Substantial Possibility of Recovery Standard

JEL Classification: K49

Suggested Citation

Jensen, Erik M., The Standard of Proof of Causation in Legal Malpractice Cases. Cornell Law Review, Vol. 63, p. 666, 1978. Available at SSRN: https://ssrn.com/abstract=1366008

Erik M. Jensen (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3613 (Phone)
216-368-2086 (Fax)

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