The Cart Before the Horse

I was reviewing some old files last month when I came across portions of a case that I handled in the 1980s. Actually, the case was begun by another attorney who went on to achieve major success in a field related to law, but not in the practice of law. That attorney started handling this very serious injury matter in which the plaintiff lost her baby.

The problem with the way my predecessor approached the case ‘ and based on his enormous success I would hesitate to call him a slouch ‘ is that he spent considerable time researching the value of the loss of a fetus. His work consumed two boxes. Unfortunately, he spent very little time on developing the causal link between the injury and the resulting loss of the child. Obviously that would have had to have been done through the appropriate medical expert. Causality is an essential element of proof in any personal injury case. In other words, negligence can be established but without the connection of the negligence to the injury the case will be lost.

Causality is the second question given to a jury. It follows the negligence or breach of warranty count. Not only must causality be established where liability is concerned ‘ that is, linking the event to the foreseeable risks ‘ it must also be established in connecting the injured party’s damages. Causality is so crucial that lawyers will be very conscious of how a judge will describe this second question in the special verdict form. Will it be a substantial contributing cause or something of that nature?

Causality is diminished or ignored at the personal injury attorney’s peril