Rule #10

If after struggling with how a particular case fits into a certain test or theory yields repeated failed attempts at reconciliation, you are probably trying to fit a square peg into a round hole.

Example:
I struggled with Jenkins v. St. Paul for several weeks. This was the case that I actually woke up thinking about one morning. I literally, as the alarm went off, rolled over and started resuming my prior evening thoughts about the case. The case is one in which an attorney fails to file a client's underlying case within the prescriptive period, causing the client's case to "die," resulting in legal malpractice. The client sues the attorney for negligence. In order for the client to recover damages, the attorney's negligence has to be the actual cause of the client's harm. The client's harm is the failed lawsuit. Using the "but-for" actual causation test, the client recovers nothing. "But-for the attorney negligence, the harm still may have occurred because the client's underlying case was faulty." However, in the realm of actual causation, there is a second test, the "substantial factor" test, that may allow a showing of causation. Using substantial factor, if the negligent act and another force operate independently and either could have caused the harm, the negligent act can still be found to be a substantial factor in bringing about the harm, and thus be the "actual cause."

In Jenkins, my reasoning was that either of the 2 separate forces [(1) the client's underlying faulty suit and (2) the attorney's negligent malpractice] could have brought about the failed lawsuit, so the malpractice could be the actual cause. Yet, this case rejects that result and simply shifts the burden to the attorney to prove that the underlying case would have failed, even if he had filed the suit within the prescriptive period.

After trying to reconcile the substantial factor test with this result for weeks, I finally asked this question and Prof. Torts simply said, "I think you're over-analyzing this," and advised that Jenkins is an exception to the normal causation rules.

Exception. It's a dirty word, but one whose significance I apparently failed to realize.