Masellis v. Law Office of Leslie F. JensenAnnotate this Case
The applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard. In this case, defendant, the attorney, contends that the element of causation and damages in a "settle and sue" legal malpractice case must be proven to a legal certainty, and that the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.
The Court of Appeal explained that no published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Therefore, the court held that the term "legal certainty" is ambiguous and the court resolved the ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury as simply referring to the degree of certainty inherent in the applicable burden of proof.