Since time immemorial, philosophers, theologians, mathematicians, and members of the bar have been fascinated with the concept of cause and effect. Indeed, since at least the days of the Scottish philosopher David Hume, there has been an exhaustive attempt to adequately define the nexus or link between the antecedent, the cause, and the subsequent, the effect. This search for a nexus, what some have called the ”relating relation” between cause and effect, or causation, has proven difficult, especially in the area of tort law.
At first blush, the issue of cause and effect and the relational issue of causation, would appear to be rather straightforward, however, “[a]lthough it sounds simple, ’causation is an inscrutably vague notion, susceptible to endless philosophical argument, as well as practical manipulation.'” Indeed, the element of cause-in-fact (as well as proximate cause) has proven especially troublesome in legal malpractice matters specifically and in tort matters generally. In legal malpractice matters more particularly, the judiciary and scholars alike seem rather perplexed over the element of cause-in-fact and the burdens plaintiffs have to demonstrate cause-in-fact and the value of the underlying claim, defense, or position that was allegedly lost at the hands of the negligent former attorney. For illustrative purposes, consider the issue of cause-in-fact and the plaintiff’s burdens of proof with regard to causation and damages in the following two legal malpractice scenarios, imaginatively referred to as scenario A and scenario B. . . .