## Facts

- John Kirsch suffered a work-related shoulder injury, underwent surgery, and was placed in an “airplane splint” that required careful padding to avoid ulnar nerve pressure.
- Kirsch later developed pain, numbness, and atrophy; physicians offered competing explanations, including ulnar nerve injury from splinting, brachial plexus neurosis, and possible cervical spine pathology later not confirmed.
- Shortly before the medical-malpractice limitations period expired, Kirsch retained James J. Duryea, an attorney experienced in medical-malpractice litigation.
- Duryea filed a medical-malpractice action against the surgeon and hospital, reviewed records, consulted physicians, and performed legal and medical research.
- Based on the medical information available to him, Duryea concluded there was insufficient evidence of negligence or causation to justify trial, advised Kirsch not to proceed, and sought to withdraw.
- Duryea warned Kirsch about California’s requirement that the case be brought to trial within five years and provided a substitution-of-attorney form; he also transmitted the file to another attorney at Kirsch’s request.
- No successor counsel prosecuted the medical-malpractice case, and it was dismissed under the five-year mandatory dismissal rule.
- Kirsch sued Duryea for legal malpractice, claiming negligent advice to abandon a viable case and negligent handling of the five-year deadline; a jury found Duryea negligent and awarded damages.

## Issues

1. Whether substantial evidence supported a finding that Duryea breached the standard of care by recommending against trial and withdrawing after investigating the medical-malpractice claim.
2. Whether Kirsch proved causation by showing that, absent Duryea’s alleged negligence, Kirsch would probably have obtained a better result in the underlying medical-malpractice action.
3. Whether the dismissal under the five-year rule was attributable to Duryea’s negligence.

## Decision

- The Supreme Court of California reversed the judgment for Kirsch and directed entry of judgment for Duryea.
- The court held the evidence was insufficient, as a matter of law, to prove Duryea’s representation fell below ordinary professional skill and prudence.
- The court further held Kirsch failed to prove the “case within a case”—that the underlying medical-malpractice claim was probably meritorious and would have succeeded.
- The court concluded the five-year dismissal was not shown to be the result of negligent handling by Duryea where he warned of the deadline and the record did not establish a winnable underlying claim.

## Legal Principles

- Legal malpractice requires proof that counsel failed to use the skill, prudence, and diligence commonly possessed and exercised by attorneys, and that this failure proximately caused damage.
- In litigation-malpractice claims, causation generally requires a “trial-within-a-trial” showing that the client would probably have obtained a more favorable outcome absent the attorney’s negligence.
- An attorney is not liable for an honest error in professional judgment when the decision is made in good faith and supported by reasonable investigation and an informed, rational basis.
- Expert testimony that another attorney would have tried the case or pursued a different strategy does not, without identification of a departure from customary professional practice, establish breach.

## Conclusion

The court set aside the plaintiff’s malpractice verdict because the attorney’s recommendation not to try the medical-malpractice case reflected a good-faith, investigated litigation judgment, and the plaintiff did not prove that the underlying medical-malpractice action probably would have succeeded or that the five-year dismissal was caused by negligent representation.


Kirsch v. Duryea, 578 P.2d 935 (Cal. 1978)