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| Mixing a lot of areas of practice here |
By Andrew Delaney
This is a legal malpractice case. Just the phrase “legal malpractice” makes me a little sweaty and nervous. Such is a lawyer’s lot in life.
But this is not about me (as my wife is fond of reminding me).
Ms. Sachs had a brief relationship with a man in the summer of 2010. She got pregnant. When she told the father about the pregnancy, he “expressed his wish not to be involved with plaintiff and the child.” I quoted that directly from the opinion because that’s got to be one of the most churched-up ways of putting that conversation I’ve seen lately.
Three months before the baby was born, Ms. Sachs went to meet with a lawyer. The lawyer—Attorney Waxman—told her that she should hold off for a year or so after the baby was born to file a parentage case because that would reduce the risk of father having a change of heart and seeking custody or significant contact. Decent point in my opinion. Attorney Waxman also told Ms. Sachs that she’d get child support retroactive to the date of the baby’s birth. On that point, Attorney Waxman did no research and relied on her experience as family law lawyer. Not to give too much away, but that was probably a mistake.
So, Ms. Sachs borrowed money from her mom and one of her mom’s friends. She expected to pay it back after the back-child-support question got sorted out in court. Later.
The baby was born and just about a year later—based on the previous advice—Ms. Sachs hired Attorney Waxman to file a parentage action. That moved along and an associate attorney worked with Ms. Sachs. Now, when associate told Ms. Sachs after a conference that child support would go back to the date of filing, not birth, Ms. Sachs was surprised. So, associate ran the question by Attorney Waxman, who again told Ms. Sachs that the obligation would go back to birth. There was even an email from Attorney Waxman to Ms. Sachs saying so.
Eventually, because father’s attorney was adamant that father shouldn’t have to pay any retroactive support, Attorney Waxman did some research. Oops. Turns out the back-to-the-date-of-birth thing was wrong.
So Attorney Waxman wrote Ms. Sachs a mea culpa letter. Ms. Sachs was understandably upset.
Attorney Waxman wrote a letter to the father’s attorney and “acknowledged that her research revealed that she had been mistaken about the date of retroactivity.” Attorney Waxman noted that Ms. Sachs definitely would have filed right away had she had the correct information
The parties finally landed on a stipulated child support agreement. It was a little bit higher than the guideline amount, but only went back to the date of filing, not the date of birth. There was a lump sum for the back child support. After using that lump sum to pay back the loans, Ms. Sachs was still $15K in the hole.
So, Ms. Sachs filed legal malpractice and breach of contract claims against Attorney Waxman. There was a bench trial and the court found that there was a breach of the standard of care (not giving Ms. Sachs correct advice about retroactivity), but that the breach wasn’t the cause in fact of Ms. Sachs’s damages. The trial court wasn’t sure Ms. Sachs would have filed any sooner absent the breach and it also found that Ms. Sachs’s damages were speculative.
Ms. Sachs appeals. She argues that Attorney Waxman gave negligent advice. Ms. Sachs relied on that advice to her detriment and her damages aren’t speculative. Attorney Waxman counters, and argues that there’s no causal connection between the breach and damages. Who will prevail? We're getting there. Give me a minute.
A legal malpractice (aka legal negligence) claim follows the standard negligence formula. A plaintiff must prove: (1) duty, (2) breach, (3) causation, and (4) damages. Here, there’s no question that there was a duty that was breached, so the majority focuses on causation and damages.
The trial court reasoned that Ms. Sachs’s claim failed because Ms. Sachs didn’t show that she would have filed earlier but for Attorney Waxman’s negligent advice. The majority disagrees. In general, proximate cause means cause-in-fact. This must be proved by a preponderance of the evidence—or more likely than not—standard.
A lot of the time, proximate cause proof—especially in professional negligence claims—requires expert testimony. But expert testimony isn’t needed when the professional’s “lack of care is so apparent that only common knowledge and experience are needed to comprehend it.” Here, the SCOV majority notes that the trial court found that Ms. Sachs decided to delay filing the parentage action based on Attorney Waxman’s advice. Additionally, a retainer agreement was signed, and—again based on Attorney Waxman’s advice—the parentage action wasn’t filed until the following year. Ms. Sachs also borrowed money to provide for the baby. She agreed to pay those loans with the expected child support. The majority reasons: “All of these findings established a clear causal link between the delayed filing and defendant's advice and, further, showed that plaintiff expected the child support to be retroactive because of defendant’s advice.”
The majority also points out that Attorney Waxman herself admitted in the letter to father’s attorney that Ms. Sachs would’ve filed earlier had the “rules on retroactivity of support been more clear.” The majority also notes that Ms. Sachs specifically asked Attorney Waxman about child support at the beginning and that Ms. Sachs was very upset when she received Attorney Waxman’s letter.
All this, the majority reasons, establishes by a preponderance of the evidence that Attorney Waxman’s negligent advice was the cause in fact of Ms. Sachs’s injury. The majority reasons that not only did Ms. Sachs rely on Attorney Waxman’s advice, Attorney Waxman admitted that Ms. Sachs did so. That’s enough to demonstrate cause-in-fact.
The majority dismisses Attorney Waxman’s argument that Ms. Sachs wouldn’t have filed anyway because the father would have become belligerent. There’s only one thing in the record that remotely supports that, according to the majority, and that happened after the case was already in court. The trial court got the standard wrong and the causation finding is reversed.
The majority also reasons that Ms. Sachs’s damages are not speculative, and that she proved “measurable damages caused by defendant’s negligent advice.” The majority first reasons that there was a period of child support (over a year) that Ms. Sachs would’ve been entitled to but she did not receive. There are direct damages.
The trial court’s reasoning, more or less, was that the amount Ms. Sachs finally ended up with for monthly child support was higher than the guideline amounts and “made up” for the missed payments. This is not how it works. Ms. Sachs doesn’t have a burden to show the exact measure of damages; she need only show that they exist. There’s a causal connection and there’s not necessarily an automatic offset for a possibly “higher” ultimate payment agreed to by the parties.
On this point, the majority expands: “The court’s suggestion that, over the length of the child support obligation, the $1875 monthly award will adequately compensate for the fifteen months without child support completely ignores the direct monetary costs plaintiff accrued caring for her daughter as an infant, costs that she covered by obtaining personal loans that she cannot repay.” And child support obligations change and can change often, so if anything, the trial court was speculating here.
The majority stops short of calculating Ms. Sachs’s damages, though. That will be up to the trial court.
Though Ms. Sachs requests attorney’s fees, the majority declines. There are two “rules” when it comes to attorney’s fees: the American Rule (pay your own way) and the English Rule (loser pays). In general, unless there’s a statute or a contract, we follow the American Rule. Here, the majority sees no reason to depart from the American Rule. There’s a substantial discussion on reasons for departure from the American Rule, however, if you’re into that sort of thing.
Justice Carroll dissents, joined by specially assigned Judge Harris. She reasons that plaintiff failed to prove by a preponderance of the evidence that she would have filed her parentage complaint sooner if she had been given accurate advice concerning child support—in fact, the dissent reasons, the majority’s standard supports this conclusion (but the majority applies the standard the wrong way).
The dissent points out that Ms. Sachs didn’t just come to Attorney Waxman for advice on child support—Ms. Sachs wanted to make sure that she didn’t destroy the relationship with the baby’s paternal grandparents (who were in a position to help financially) and was also concerned about father taking custody. The majority makes it too black and white. The dissent opines: “Looking beyond the trial court’s specific factual findings, there is additional evidence in the record that supports a conclusion that plaintiff was motivated by more than the timing of child support when she made the decision to delay filing her parentage case.” The dissent reasons that it’s not so clear—even by a preponderance—that Ms. Sachs would have filed earlier absent the erroneous advice about retroactive child support.
In the dissent’s view, “the trial court’s findings and the record as a whole support the conclusion that plaintiff failed to demonstrate that ‘but for’ defendant’s negligence she would have filed her parentage complaint sooner.”
What do I think? I’m just glad I don’t do family law (anymore).
Three months before the baby was born, Ms. Sachs went to meet with a lawyer. The lawyer—Attorney Waxman—told her that she should hold off for a year or so after the baby was born to file a parentage case because that would reduce the risk of father having a change of heart and seeking custody or significant contact. Decent point in my opinion. Attorney Waxman also told Ms. Sachs that she’d get child support retroactive to the date of the baby’s birth. On that point, Attorney Waxman did no research and relied on her experience as family law lawyer. Not to give too much away, but that was probably a mistake.
So, Ms. Sachs borrowed money from her mom and one of her mom’s friends. She expected to pay it back after the back-child-support question got sorted out in court. Later.
The baby was born and just about a year later—based on the previous advice—Ms. Sachs hired Attorney Waxman to file a parentage action. That moved along and an associate attorney worked with Ms. Sachs. Now, when associate told Ms. Sachs after a conference that child support would go back to the date of filing, not birth, Ms. Sachs was surprised. So, associate ran the question by Attorney Waxman, who again told Ms. Sachs that the obligation would go back to birth. There was even an email from Attorney Waxman to Ms. Sachs saying so.
Eventually, because father’s attorney was adamant that father shouldn’t have to pay any retroactive support, Attorney Waxman did some research. Oops. Turns out the back-to-the-date-of-birth thing was wrong.
So Attorney Waxman wrote Ms. Sachs a mea culpa letter. Ms. Sachs was understandably upset.
Attorney Waxman wrote a letter to the father’s attorney and “acknowledged that her research revealed that she had been mistaken about the date of retroactivity.” Attorney Waxman noted that Ms. Sachs definitely would have filed right away had she had the correct information
The parties finally landed on a stipulated child support agreement. It was a little bit higher than the guideline amount, but only went back to the date of filing, not the date of birth. There was a lump sum for the back child support. After using that lump sum to pay back the loans, Ms. Sachs was still $15K in the hole.
So, Ms. Sachs filed legal malpractice and breach of contract claims against Attorney Waxman. There was a bench trial and the court found that there was a breach of the standard of care (not giving Ms. Sachs correct advice about retroactivity), but that the breach wasn’t the cause in fact of Ms. Sachs’s damages. The trial court wasn’t sure Ms. Sachs would have filed any sooner absent the breach and it also found that Ms. Sachs’s damages were speculative.
Ms. Sachs appeals. She argues that Attorney Waxman gave negligent advice. Ms. Sachs relied on that advice to her detriment and her damages aren’t speculative. Attorney Waxman counters, and argues that there’s no causal connection between the breach and damages. Who will prevail? We're getting there. Give me a minute.
A legal malpractice (aka legal negligence) claim follows the standard negligence formula. A plaintiff must prove: (1) duty, (2) breach, (3) causation, and (4) damages. Here, there’s no question that there was a duty that was breached, so the majority focuses on causation and damages.
The trial court reasoned that Ms. Sachs’s claim failed because Ms. Sachs didn’t show that she would have filed earlier but for Attorney Waxman’s negligent advice. The majority disagrees. In general, proximate cause means cause-in-fact. This must be proved by a preponderance of the evidence—or more likely than not—standard.
A lot of the time, proximate cause proof—especially in professional negligence claims—requires expert testimony. But expert testimony isn’t needed when the professional’s “lack of care is so apparent that only common knowledge and experience are needed to comprehend it.” Here, the SCOV majority notes that the trial court found that Ms. Sachs decided to delay filing the parentage action based on Attorney Waxman’s advice. Additionally, a retainer agreement was signed, and—again based on Attorney Waxman’s advice—the parentage action wasn’t filed until the following year. Ms. Sachs also borrowed money to provide for the baby. She agreed to pay those loans with the expected child support. The majority reasons: “All of these findings established a clear causal link between the delayed filing and defendant's advice and, further, showed that plaintiff expected the child support to be retroactive because of defendant’s advice.”
The majority also points out that Attorney Waxman herself admitted in the letter to father’s attorney that Ms. Sachs would’ve filed earlier had the “rules on retroactivity of support been more clear.” The majority also notes that Ms. Sachs specifically asked Attorney Waxman about child support at the beginning and that Ms. Sachs was very upset when she received Attorney Waxman’s letter.
All this, the majority reasons, establishes by a preponderance of the evidence that Attorney Waxman’s negligent advice was the cause in fact of Ms. Sachs’s injury. The majority reasons that not only did Ms. Sachs rely on Attorney Waxman’s advice, Attorney Waxman admitted that Ms. Sachs did so. That’s enough to demonstrate cause-in-fact.
The majority dismisses Attorney Waxman’s argument that Ms. Sachs wouldn’t have filed anyway because the father would have become belligerent. There’s only one thing in the record that remotely supports that, according to the majority, and that happened after the case was already in court. The trial court got the standard wrong and the causation finding is reversed.
The majority also reasons that Ms. Sachs’s damages are not speculative, and that she proved “measurable damages caused by defendant’s negligent advice.” The majority first reasons that there was a period of child support (over a year) that Ms. Sachs would’ve been entitled to but she did not receive. There are direct damages.
The trial court’s reasoning, more or less, was that the amount Ms. Sachs finally ended up with for monthly child support was higher than the guideline amounts and “made up” for the missed payments. This is not how it works. Ms. Sachs doesn’t have a burden to show the exact measure of damages; she need only show that they exist. There’s a causal connection and there’s not necessarily an automatic offset for a possibly “higher” ultimate payment agreed to by the parties.
On this point, the majority expands: “The court’s suggestion that, over the length of the child support obligation, the $1875 monthly award will adequately compensate for the fifteen months without child support completely ignores the direct monetary costs plaintiff accrued caring for her daughter as an infant, costs that she covered by obtaining personal loans that she cannot repay.” And child support obligations change and can change often, so if anything, the trial court was speculating here.
The majority stops short of calculating Ms. Sachs’s damages, though. That will be up to the trial court.
Though Ms. Sachs requests attorney’s fees, the majority declines. There are two “rules” when it comes to attorney’s fees: the American Rule (pay your own way) and the English Rule (loser pays). In general, unless there’s a statute or a contract, we follow the American Rule. Here, the majority sees no reason to depart from the American Rule. There’s a substantial discussion on reasons for departure from the American Rule, however, if you’re into that sort of thing.
Justice Carroll dissents, joined by specially assigned Judge Harris. She reasons that plaintiff failed to prove by a preponderance of the evidence that she would have filed her parentage complaint sooner if she had been given accurate advice concerning child support—in fact, the dissent reasons, the majority’s standard supports this conclusion (but the majority applies the standard the wrong way).
The dissent points out that Ms. Sachs didn’t just come to Attorney Waxman for advice on child support—Ms. Sachs wanted to make sure that she didn’t destroy the relationship with the baby’s paternal grandparents (who were in a position to help financially) and was also concerned about father taking custody. The majority makes it too black and white. The dissent opines: “Looking beyond the trial court’s specific factual findings, there is additional evidence in the record that supports a conclusion that plaintiff was motivated by more than the timing of child support when she made the decision to delay filing her parentage case.” The dissent reasons that it’s not so clear—even by a preponderance—that Ms. Sachs would have filed earlier absent the erroneous advice about retroactive child support.
In the dissent’s view, “the trial court’s findings and the record as a whole support the conclusion that plaintiff failed to demonstrate that ‘but for’ defendant’s negligence she would have filed her parentage complaint sooner.”
What do I think? I’m just glad I don’t do family law (anymore).
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