Daugert v. Pappas

Supreme Court of Washington · Torts

Tortslegal malpracticeproximate causefailure to perfect appeallegal malpracticeproximate causecause in factbut for

Facts

This malpractice action arose after an attorney failed to timely file a petition for review of a Court of Appeals decision that had reversed a favorable trial judgment for the developer in an underlying contract dispute. Because the petition was filed late and the attorney did not properly request an extension, the developer lost the right to further appellate review and judgment was entered against it in the underlying case. In the malpractice trial, the only disputed issue was proximate cause, and both sides presented expert testimony on whether the Supreme Court likely would have granted review and reversed. The trial court instructed the jury to decide whether the attorney's negligence caused a lost chance to avoid damage and whether that loss was a substantial factor in causing harm.

Issue

In a legal malpractice action based on an attorney's failure to timely perfect appellate review, is cause in fact for the jury or for the judge? Also, should causation be tested by a lost-chance or substantial-factor approach, or by the traditional but-for standard?

Rule

When legal malpractice consists of failing to timely file an appeal or petition for review, the client must prove that, but for the attorney's negligence, the client probably would have prevailed on appeal—meaning the appellate court would have granted review and rendered a more favorable judgment. That causation determination is a question of law for the trial judge, who must review the record of the underlying action and apply the same rules of review that the appellate court would have applied.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Seattle, attorney Nora Kim agreed to file a petition for review after the Court of Appeals ruled against her client, Victor Lane, in a commercial lease dispute. Kim missed the filing deadline, and Victor later sued for malpractice; at trial, both sides offered appellate experts to estimate the likelihood of further review and reversal.

Who should decide whether Kim's negligence caused Victor's loss?

Explanation. When malpractice consists of failing to perfect appellate review, the causation inquiry asks whether the appellate court would have granted review and rendered a more favorable judgment. The majority held those determinations require legal analysis of the record and appellate rules, so they are for the judge as a question of law, irrespective of whether the facts are disputed. (Derived from Daugert v. Pappas (n.d.).)