Academic journal article Defense Counsel Journal

No Case within a Case in Transaction Practice

Academic journal article Defense Counsel Journal

No Case within a Case in Transaction Practice

Article excerpt

In Viner v. Sweet, 112 Cal.Rptr.2d 426 (2001), the California Court of Appeal, Second District, held that the legal malpractice defense known as "case within a case" is not appropriate in a action charging negligence in a transactional, as opposed to litigation, context.

Charles A. Sweet, a corporate transactional lawyer, negotiated and drafted an employment termination agreement that became the focus of the later malpractice action. Sweet and his law firm, Williams & Connolly, interposed the case within a case defense, claiming that the plaintiffs should have to prove that the opposing side in the contract negotiations would have given them a better deal "but for" the claimed professional negligence, or that they would not have entered into the deal at all and therefore would be better off. But the trial court disagreed and submitted the case to the jury on the basis of negligence and whether the negligence caused damage to the plaintiffs. The jury returned a $13 million verdict for the plaintiffs.

Affirming, the Court of Appeal declared that the case within a case approach has limited utility in the transactional practice context. …

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