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LEGAL PROFESSION the “but for” test for causation applies to transactional as well as litigation legal malpractice actions, the California Supreme Court held on June 23. Viner v. Sweet, No. S101964. Michael and Deborah Viner founded Dove Audio Inc., a company producing versions of books narrated by celebrities. After the Viners sold the company, they sued their lawyer, Charles Sweet, and his firm, Washington’s Williams & Connolly, alleging legal malpractice in the sale transaction. After a jury returned a $13.2 million verdict for the Viners, Sweet and the firm appealed, arguing that the Viners failed to show that “but for” Sweet’s negligence, they would have had a better result. An intermediate appellate court reduced the judgment amount, but otherwise affirmed, holding that the “but for” test did not apply to transactional legal malpractice actions. Sweet and the firm appealed. Reversing, California’s top court held that the test applied to transactional and litigation malpractice actions. Rejecting the Viners’ argument that the differences between litigation and transactional work made the test inapplicable, the court said, “Determining causation always requires evaluation of hypothetical situations concerning what might have happened, but did not. In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent.”

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