Unfortunately, errors occur in the course of litigation. The complexity of the issues, the pressure of a vigorously contested case, and the need to make prompt decisions can contribute to the commission of the errors. But, the errors may not be solely those of the attorneys. Sometimes, the trial judge can make an error that may prove decisive in the case. Is this a defense when the attorney is sued by her client for malpractice? The short answer is “yes,” although it is a difficult one to prove and potentially limited in scope.

Judicial error as a defense has received little attention and is rarely asserted. This is probably as a result of: (a) the fact that, until recently, relatively few malpractice claims arose out of litigation; and (b) skepticism that one could persuade a jury that an independent, learned participant in the process was responsible for the client's disappointing result. But, this situation may be changing as litigation related claims have risen substantially.

What is the Judicial Error Defense?

While the judicial error defense can arise in different scenarios, it invariably arises out of litigation where the judge purportedly made an error that caused the client to obtain a disappointing result. The attorney may claim that she did not commit any error and that the loss was solely the result of the court's mistake. Or, she may claim that while she may have committed an error, it did not cause the loss because the court's error was far more significant and a superseding cause, or that her error and that of the court were concurrent causes of the loss.

Several courts outside New Jersey have recognized the defense of judicial error. See, e.g., Kiribati Seafood Co. v. Dechert, 478 Mass. 111 (2017); Church v. Jamison, 143 Cal. App. 4th 1568 (2006); Lombardo v. Huysentruyt, 91 Cal. App. 4th 656 (2001); Carson v. Kanazawa, No. 14-00544, 2017 U.S. Dist. (D. Haw. Apr. 30, 2017); U-Haul Co. of Nev., v. Gregory J. Kamer, No. 2:12-cv-00231, 2013 U.S. Dist. (D. Nev. Aug. 28, 2013). While the law in New Jersey is non-existent, there is no published decision precluding the defense. It is an affirmative defense, and the burden of proof lies with the attorney to demonstrate the judicial error and the impact of the error on the client's claims of causation and damages. Whether the error must be the sole or superseding cause of the client's loss is unclear. See Skinner v. Stone, Raskin & Israel, 724 F.2d 264, 266 (2d Cir. 1983); Kiribati, 478 Mass. at 120-21.

Generally, the judicial error involves errors of law because a court decides what law applies to a dispute; e.g., does the law of New Jersey or New York apply; what jury instructions should be given; is a good faith claim precluded by an express contract claim. However, judicial error can also occur where the court applies the law to the facts on a motion for summary judgment or decides the facts at a bench trial or on a summary judgment motion. While it may be more difficult to prove these latter errors, they can be judicial errors that alter the outcome of a case and the basis for a judicial error defense.

Proving this Defense may not be so Easy

To succeed on this defense, the attorney must prove (a) the judge in the underlying case made a mistake, and (b) this mistake caused the client to lose or achieve a disappointing result. Of these two elements, causation may be the more difficult issue for the defendant, especially if the attorney also committed an error.

Proving judicial error in the context of a legal malpractice case is similar to what is done on an appeal in the underlying case. For example, the attorney must prove the trial court's ruling was contrary to the law and would present to the court the law she contends is controlling and at odds with the underlying court's decision. One potentially significant difference, however, is that there may be experts in the malpractice action opining on whether the judge erred and the impact of the error where such experts are usually missing on an appeal.

On the most basic level, the defendant must prove the judge made a mistake. If the earlier decision was appealed and the trial court reversed, demonstrating judicial error may be relatively straightforward, especially if the basis of the reversal was the purported judicial error; e.g. Skinner, 724 F.2d at 265. If no appeal was taken or the case settled while on appeal, the defendant can still challenge the earlier decision, but will likely need expert support for this defense, in part because of the skepticism of many to the claim of judicial error. An expert witness who is a retired judge rather than a practicing attorney may be preferable because of the inherent bias a fact-finder may have in favor of the trial judge.

The opinions of successor counsel, who are often retained after a case is lost at trial or on a motion, may also be useful in demonstrating judicial mistake. Successor counsel often evaluate the basis for and merits of an appeal, thereby potentially lending additional support to the attorney's defense. For this reason, the attorney should subpoena a successor counsel's files. Similarly, the appellate briefs should be helpful in proving judicial error and causation, especially if successor counsel has brought the appeal.

As suggested earlier, the causation element of the judicial error defense may be more difficult than proving the error. The defendant must demonstrate that the trial court would have reached a more favorable result for the client if the error had not occurred. The standard is objective; i.e., if the error had not been made, a reasonable judge would have reached a more favorable result. See Church, 143 Cal. App. 4th at 1585; Lombardo, 91 Cal. App. 4th at 668. What the trial judge handling the case would have done is irrelevant.

For judicial error to be a complete defense, the attorney must not have been guilty of negligence or the court's error must be the superseding cause of the client's harm if the attorney was guilty of negligence as well; e.g. Kiribati, 478 Mass. at 120-21. If the judicial error is a potential concurrent cause, the trier of fact will have to decide if the error was a superseding or concurrent cause of the bad result; e.g. Skinner, 724 F.2d at 266.

Virtually all of the existing case law on this defense has involved dispositive motions where the attorney sought a dismissal of the malpractice claim on the grounds that judicial error was a superseding cause notwithstanding the defendant's alleged negligence; e.g., Carson (D. Haw. Apr. 30, 2017); Church, 143 Cal. App. 4th at 1572. Although whether something is a superseding or concurrent cause can be complicated, and the courts in these malpractice cases have often identified the critical issue as whether the attorney should have reasonably foreseen the judicial error; e.g. Kiribati, 478 Mass. at 120-21; cf. Lynch v. Scheininger, 162 N.J. 209, 227-30 (2000). These courts have held that if the error could be reasonably foreseen, then the trier of fact will have to determine if the attorney took reasonable steps to prevent the court's error or mitigate its effect; Kiribati, 478 Mass. at 120-21; Lombardo, 91 Cal. App. 4th at 668-69. However, not all judicial errors are reasonably foreseeable, and some courts have pointed out that the erring court had done something earlier in the litigation that made the error foreseeable. Kiribati, 478 Mass. at 120-21; Lombardo, 91 Cal. App. 4th at 669. Significantly, in a number of these cases, the courts found there was a factual issue requiring a trial on whether the judicial error was a superseding or concurrent cause. E.g., Skinner, 724 F.2d at 266. However, in none of these cases did the courts expressly address whether there will be an apportionment of liability when the judicial error is a concurrent cause. As a result, it is not clear whether judicial error as a concurrent cause is a partial defense or a mitigating factor. Cf. Kim v. Fingeroth (N.J. App. Div. July 30, 2015).

In addition to causation, a client must also prove damages, which are frequently the pecuniary judgment entered against him in the underlying case. These damages may disappear following a successful appeal. However, some courts have held that where judicial error was not a sole or superseding cause of the client's loss in the underlying case, a client may still recover from the attorney as damages the costs incurred to appeal. See, e.g., Huang v. Brenson, 7 N.E.3d 729 (Ill. App. Ct. 2014).

Some jurisdictions, such as Florida and Ohio, have also recognized that the withdrawal of an appeal, in certain circumstances, is tantamount to the abandonment of a malpractice action, and the action will be dismissed as a result. See Pa. Ins. Guar. Ass'n v. Sikes, 590 So. 2d 1051, 1053 (Fla. Dist. Ct. App. 3d Dist. 1991) (the alleged error upon which the client's malpractice claim was based was an abuse of discretion by the trial court which would have been corrected had the appeal not been dismissed). This principle has not been adopted in New Jersey, nor has it seen wide acceptance in other jurisdictions.

Conclusion

Judicial error is not often raised in legal malpractice cases, but it is a potentially valuable affirmative defense. A mistake by the trial court in the underlying case should present a complete defense if it was the sole or superseding cause of the client's poor result. If judicial and attorney errors were concurrent causes, it may be a partial defense or mitigating factor. In any event, judicial error is worth investigating in a case arising out of an alleged error in handling litigation.

Furey is a partner with Day Pitney in Parsippany. He represents clients in commercial litigation and employment matters in federal and state courts. Gutierrez is an associate at the firm, representing corporations in product liability, torts, creditors' rights and real estate litigation.