IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEAN SHERMAN, :

 :

 :

Plaintiff, :

 : C.A. No. K18C-06-009 JJC

 : In and for Kent County

v. :

 :

STEPHEN P. ELLIS, ESQUIRE, :

 :

 :

 Defendant. :

OPINION 

Submitted: November 22, 2019

Decided: January 2, 2020

Patrick K. Gibson, Esquire, Ippoliti Law Group, Wilmington, Delaware, Attorney 

for Plaintiff.

Colleen D. Shields, Esquire, Gary W. Lipkin, Esquire, & Alexandra D. Rogin, 

Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware, Attorneys

for Defendant.

Clark, J.
2

Plaintiff Dean Sherman sues his former attorney, Stephen Ellis, Esquire, for 

legal malpractice. Prior to Mr. Sherman’s 1997 marriage, Mr. Ellis drafted a 

premarital agreement (the “Agreement”) designed to protect Mr. Sherman’s assets. 

Mr. Sherman then presented the Agreement to his fiancé.1 The Agreement waived 

her right, upon divorce, to receive alimony or to share in wealth accumulated over 

the course of their marriage. Her attorney advised her not to sign it but she 

nevertheless did.

During their divorce proceedings in 2015, Mr. Sherman’s wife challenged the 

Agreement’s enforceability in Family Court. The Family Court found it to be 

unconscionable and thus unenforceable. The Delaware Supreme Court, however, 

reversed the Family Court’s decision. In the end, the Agreement successfully barred 

her challenges.

Notwithstanding Mr. Sherman’s success after appeal, he now sues Mr. Ellis 

because he did not include a waiver of disclosure clause in the draft agreement. 

According to Mr. Sherman’s expert, it would have been a “silver bullet” removing

the incentive for his ex-wife to engage in protracted litigation. Mr. Sherman claims 

that this expanded litigation in turn expanded his costs and fees. He now seeks to 

recover those attorney and expert fees from Mr. Ellis. 

Presently, Mr. Ellis seeks summary judgment in a motion that raises two

principal issues. First, the motion requires the Court to evaluate the legal foundation 

for Mr. Sherman’s expert’s standard of care opinion. Second, with regard to 

proximate cause, the motion addresses a plaintiff’s ability to recover for legal 

malpractice in drafting a premarital agreement that, in the end, successfully 

 

1 Mr. Sherman’s former spouse is not a party. The Court will refer to her as Mr. Sherman’s fiancé, 

wife, or ex-wife as did the Delaware Supreme Court when it assigned her a pseudonym in the 

underlying action. See Silverman v. Silverman, 206 A.3d 825 (Del. 2019) (assigning pseudonyms 

and general titles to the parties).
3

protected the plaintiff’s assets. To evaluate the second issue, the Court must address 

whether the standard for proximate cause in transactional legal malpractice claims 

differs from the standard applied in litigation legal malpractice claims. 

For the reasons that follow, genuine issues of material fact remain regarding 

the applicable standard of care and whether Mr. Ellis breached that standard. 

However, in this case, there is insufficient evidence of record to support an inference 

that Mr. Sherman’s ex-wife would have agreed to include this “silver bullet” term in 

the Agreement. In addressing an issue of first impression, the same “but for” 

proximate cause limitation that applies in litigation malpractice actions must apply 

in transactional legal malpractice actions. When applying that standard, because 

record evidence does not support an inference that Mr. Sherman’s ex-wife would 

have likely accepted the term, the trier of fact would be forced to speculate regarding 

whether Mr. Ellis’s alleged negligence proximately caused Mr. Sherman harm. For 

that reason, Mr. Ellis’s motion for summary judgment must be GRANTED. 

FACTS AND PROCEDURAL BACKGROUND

The recited facts are those of record when viewed in the light most favorable 

to Mr. Sherman, the non-movant. In 1997, Mr. Sherman retained Mr. Ellis to 

negotiate and draft the Agreement prior to his marriage. The draft included

provisions designed to protect Mr. Sherman’s assets in the event of a divorce. It also 

included a mutual waiver of alimony. Finally, it included a clause recognizing that

both parties had fully disclosed their premarital assets.

2

 The proposed agreement, 

 

2 Pl. Response, Ex. A., Ex. 1, “Ante-Nuptial Agreement” at 3 (providing “[t]he parties hereby 

acknowledge that each of them has made a full disclosure to the other of all property owned or 

otherwise held by each respective party on Exhibits ‘A’ and ‘B’ attached hereto”).
4

however, did not contain a waiver of the parties’ obligations to disclose assets and 

obligations “beyond the disclosure provided.”

3

Before his fiancé signed the Agreement, she consulted with an attorney. Her 

attorney first asked Mr. Sherman to revise the proposed agreement to secure her 

future financial security. Mr. Sherman rejected those requests with the exception of 

one minor issue. His fiancé then met with her attorney to review the Agreement. 

He told her that it was one-sided and that she should not sign it. Notwithstanding

this advice, she executed it. When doing so, she acknowledged in writing that her 

attorney had advised her not to. The two then married.

In 2015, Mr. Sherman’s wife filed for divorce and moved to set aside the 

Agreement. At that point, Mr. Sherman’s assets exceeded twelve million dollars and 

his annual income exceeded one million dollars. In contrast, she had no independent 

income or separate assets. In her motion to set aside the Agreement, she argued that 

it was unenforceable because she did not execute it voluntarily.4 She also argued 

that the Agreement was unconscionable because (1) she was not provided a fair and 

reasonable disclosure of Mr. Sherman’s property, and (2) because she “did not 

voluntarily and expressly waive in writing any right to that disclosure.”5

Prior to the parties’ execution of the Agreement in 1997, Mr. Sherman had 

disclosed in writing his then four million dollars in assets.

6

 The disclosure, however,

contained errors. Namely, it omitted that he owned a Ford Explorer (though his 

fiancé had nearly exclusive use of it prior to the disclosure) as well as a three 

thousand dollar life insurance policy. It also inaccurately described his one hundred 

 

3

See 13 Del. C. § 326(a)(2)b (permitting a waiver of disclosures beyond those provided).

4

See id. at § 326(a)(1) (providing a premarital agreement is unenforceable if not executed 

voluntarily).

5 Pl. Response, Ex. A, Ex. 3, “Motion to Set Aside Ante-Nuptial Agreement,” at ¶ 5.

6 Pl. Response, Ex. A, Ex. 1 at 7.
5

percent interest in a two hundred acre property as a fifty percent interest.7 In the 

Family Court property division litigation, after discovery, briefing, and oral 

argument, that court held the Agreement to be unconscionable. Because of the

disclosure errors, it also held that Mr. Sherman’s disclosure of assets and liabilities 

was not fair and reasonable.

8

Mr. Sherman then filed an interlocutory appeal to the Delaware Supreme 

Court. With that appeal pending, Mr. Sherman filed the current legal malpractice

suit against Mr. Ellis. The then legal backdrop to the malpractice case included only

the adverse Family Court finding, which at that point was on appeal. 

After Mr. Sherman filed suit, the Delaware Supreme Court reversed the 

Family Court’s decision.9 When doing so, it confirmed that Mr. Sherman’s ex-wife 

had voluntarily executed the Agreement10 and that Mr. Sherman’s disclosure of his 

property and financial obligations was fair and reasonable.11 As a result, the 

Supreme Court held it to be immaterial whether or not the Agreement was 

unconscionable.

12

 It held the Agreement to be enforceable.

13

Nevertheless, Mr. Sherman continues to prosecute his legal malpractice claim 

against Mr. Ellis. In doing so, he seeks to recover significant attorneys’ fees that he 

alleges he incurred while litigating the unconscionability of the Agreement in Family 

Court and on appeal. His claim centers on Mr. Ellis’s allegedly negligent failure to 

 

7

Id. See also Silverman v. Silverman, 206 A.3d 825, 833 (Del. 2019) (summarizing the errors in 

the disclosures). 

8

Sherman v. Sherman, No. CS15-01396, 2018 (Del. Fam. Apr. 4, 2018).

9

Silverman, 206 A.3d at 834. 

10 Id. at 829 (explaining that “[t]he parties have accepted the Family Court's ruling that Wife 

voluntarily entered into the premarital agreement. Thus, voluntariness is no longer at issue.”).

11 Id. at 833–34.

12 Id. at 834.

13 Id.
6

include a single clause or sentence in the Agreement—a waiver of disclosures term

authorized by Delaware’s Premarital Agreement Act (the “Act”).14 

The Act recognizes that a clause in a premarital agreement that waives further 

disclosure of assets or financial obligations has a direct bearing on the enforceability 

of a premarital agreement.15 While the parties dispute the effect of this portion of 

the Act, there is no dispute that the Agreement contained no waiver of disclosure 

provision. 

In the present suit, Mr. Sherman identified Judy Jones, Esquire, as his expert 

witness. In her report and deposition testimony, Ms. Jones opines that including the 

waiver provision would by itself have precluded any claim that the Agreement was 

unconscionable. As a result, she further opines that the standard of care for a 

domestic attorney as of 1997 required an attorney to include this waiver provision

in the Agreement. Mr. Ellis’s expert counters that the standard of care did not require 

Mr. Ellis to include such a provision. 

Apart from the standard of care issue, evidence of record relevant to proximate 

cause of harm is limited to three sources. First, Mr. Sherman’s litigation attorney, 

David Gagne, Esquire, testified in his deposition that Mr. Sherman incurred 

additional fees and costs because Mr. Ellis did not include the provision in the 

Agreement. Specifically, Mr. Gagne testified as a fact witness that because Mr. Ellis 

did not include this language, Mr. Sherman had to hire two experts to address 

property values that would have otherwise been unnecessary.16 Those expert fees 

were approximately $38,000. Mr. Gagne also estimated that $285,000 of a total of 

$310,000 in attorneys’ fees that he charged were necessary only because Mr. Ellis 

 

14 See 13 Del. C. §§ 321–28.

15 See 13 Del. C. § 326.

16 Mr. Ellis also filed a motion in limine to exclude Mr. Gagne’s testimony to the extent that it

includes expert opinions. The Court need not decide that motion for purposes of this decision. 
7

did not include the disputed provision in the Agreement. Second, Ms. Jones offers 

her expert opinion that Mr. Ellis’s failure to include this term proximately caused 

the increased costs and fees identified by Mr. Gagne. Third, Mr. Sherman argues

that his ex-wife’s agreement to what were otherwise draconian terms in a one-sided 

Agreement circumstantially supports a reasonable inference that she would have 

agreed to anything he asked, including the waiver of disclosure provision. 

Notwithstanding that his ex-wife agreed to other one-sided terms, there is no 

evidence of record addressing her impressions regarding a waiver of disclosure 

provision or her willingness to agree to one. Namely, there is no direct evidence 

from her or the then-attorney that bears upon what other terms she may have agreed 

to. While she agreed to the vast majority, but not all of the terms proposed in the 

draft agreement, Mr. Sherman did not depose her or her then-attorney regarding how 

she would have reacted to the provision at issue. Likewise, there is no 

correspondence, documentary evidence, or circumstantial evidence demonstrating 

her propensity to agree to that specific provision. 

Mr. Ellis now moves for summary judgment. He has also filed a motion in 

limine to exclude Ms. Jones’s expert opinions regarding standard of care and 

proximate cause of damages. Because Ms. Jones offers opinions regarding each 

element of Mr. Sherman’s malpractice claim, the foundation for her opinions must 

be addressed when deciding Mr. Ellis’s motion for summary judgment. 

ARGUMENTS OF THE PARTIES

Mr. Ellis raises three arguments in support of his motion. First, he argues that

there is no genuine issue of material fact regarding the standard of care. In support

of this argument, he relies upon his expert’s opinion that the standard of care did not 

require the waiver language to be included in the Agreement. Furthermore, he asks 

the Court to disregard Ms. Jones’s expert opinion because she allegedly 
8

misinterprets a provision in the Act that anchors her standard of care opinion. 

Because she misinterprets the statute, he argues that her opinion has no foundation 

and should be rejected for purposes of summary judgment. 

Second, he argues that because the Agreement survived a legal challenge and 

protected Mr. Sherman’s assets, Mr. Sherman’s claim fails as a matter of law. He 

concedes the absence of mandatory authority or in-State persuasive authority

regarding transactional malpractice claims. Rather, Mr. Ellis cites other states’

authority holding that a legal malpractice plaintiff must demonstrate that, but for the 

defendant’s conduct, he or she would have obtained a more favorable result than the 

one obtained. According to Mr. Ellis, applying the same “case within a case” 

approach used by many courts in litigation malpractice actions, mandates summary 

judgment in this case. 

Third, Mr. Ellis argues that Mr. Sherman’s claim is “fatally speculative.”17 

He lists six assumptions that a jury would need to speculate about before it could 

find proximate cause of harm. Namely, he argues that Mr. Sherman’s claim requires

speculation regarding the following: (1) Mr. Sherman’s former wife would have 

accepted the waiver of disclosure language if Mr. Ellis had proposed it; (2) Mr. Ellis

never, in fact, proposed the language; (3) if he included the language in the 

Agreement, she would not have challenged the Agreement anyway; (4) the litigation 

expenses would have been less had he included the waiver of disclosure language; 

(5) the Family Court would have ruled differently if the waiver language was 

included; and (6) Mr. Sherman’s ex-wife, as opposed to Mr. Sherman, would not 

have appealed if she had lost in Family Court.18 On balance, he argues that because

there is no evidence regarding Mr. Sherman’s ex-wife’s willingness to have agreed

 

17 Def. Ellis Opening Br. at 10.

18 Id. at 5. 
9

to this pivotal term or her resolve to continue litigating under various scenarios, 

proximate cause of harm to Mr. Sherman is speculative.

In response, Mr. Sherman argues that the evidence of record creates issues of 

material fact precluding summary judgment. Namely, he argues that the conflicting 

deposition testimonies of his and Mr. Ellis’s expert witnesses create a jury question 

as to the appropriate standard of care. Mr. Sherman also argues that Ms. Jones’s

interpretation of the Act is correct as a matter of law. Finally, Mr. Sherman urges 

the Court to apply a relaxed approach when evaluating proximate cause of damages. 

He argues that the relationship of damages to the negligence alleged is not 

speculative when applying this relaxed standard. 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if there is no genuine issue of material 

fact and the movant is entitled to judgment as a matter of law.19 The Court must 

view the evidence in the light most favorable to the non-moving party.20 The burden 

of proof is initially on the moving party.21 However, if the movant meets his or her 

initial burden, then the burden shifts to the non-moving party to demonstrate the 

existence of material issues of fact.22 The non-movant's evidence of material facts 

in dispute must be sufficient to withstand a motion for judgment as a matter of law 

and sufficient to support the verdict of a reasonable jury.23 

 

19 Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

20 Brozaka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

21 Super. Ct. Civ. R. 56(e); Moore, 405 A.2d at 680 (Del. 1979).

22 Moore, 405 A.2d at 681 (citing Hurtt v. Goleburn, 330 A.2d 134 (Del. 1974)).

23 Lum v. Anderson, 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).
10

ANALYSIS

The Court must first determine whether there is a genuine issue of material 

fact regarding the standard of care applicable to Mr. Ellis. Because (1) expert 

testimony regarding this issue is necessary, and (2) Mr. Sherman’s expert relies upon

her interpretation of the Act to support her opinion, the Court must determine if the 

Act supports her position. Next, the Court must address whether Mr. Sherman states 

a claim when the Agreement ultimately protected his assets. In other words, is there 

any legally recognizable harm when the Agreement fulfilled its primary purpose, 

although through a more circuitous route? Finally, the Court must address whether 

the evidence of record, when examined in the light most favorable to Mr. Sherman,

demonstrates a genuine issue of material fact regarding proximate cause.

The record demonstrates a genuine issue of material fact regarding the 

applicable standard of care and whether Mr. Ellis breached it.

Central to the Court’s decision regarding the standard of care is Mr. Ellis’s

motion in limine to exclude Ms. Jones’s opinion regarding the applicable standard 

of care.

24

 Expert testimony is required for a plaintiff to establish the standard of care 

in a legal malpractice case. As to the standard of care, the parties offer competing 

expert opinions. Ms. Jones’s relevant opinion includes that Mr. Ellis “acted 

negligently and breached the applicable standard of care for a Delaware lawyer when 

 

24 Neither Mr. Ellis nor Mr. Sherman couched their submissions in terms of a Daubert challenge. 

Foundational requirements are an aspect of a Daubert review. See Perry v. Berkley, 996 A.2d 

1262, 1267 (Del. 2010) (explaining the Delaware Supreme Court “has adopted the United States 

Supreme Court holding in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–95 (1993)], 

which requires that an expert's opinion be based upon a proper factual foundation and sound 

methodology to be admissible, as the correct interpretation of D.R.E. 702”). Because the parties 

proceeded immediately to their contrary arguments regarding the proper interpretation of the Act 

and whether Ms. Jones’s interpretation provides an adequate foundation for her opinion, the Court

will focus only on that aspect of the Daubert requirements. 
11

he failed to include in the [Agreement] a written waiver of further disclosure of 

property or financial obligations as permitted by 13 Del. C. § 326(a)(2)[b].”25

Mr. Ellis argues that because Ms. Jones incorrectly interprets the cited statute, 

her opinion deserves no weight and need not be accepted for summary judgment 

purposes. Mr. Sherman counters that had Mr. Ellis included one sentence in the 

Agreement, it would have significantly minimized Mr. Sherman’s attorney fees and 

expert costs.

The parties agree that the standard of care issue centers on their contrary

interpretations of a provision in Delaware’s version26 of the Uniform Premarital 

Agreement Act (the “UPAA”). The provision of the Act relevant to this dispute is

Section 326. In relevant part, it provides: 

(a) A premarital agreement is not enforceable if the party against whom 

enforcement is sought proves that: 

(1) Such party did not execute the agreement voluntarily; or 

(2) The agreement was unconscionable when it was executed

 and, before execution of the agreement, that party; 

a. Was not provided a fair and reasonable disclosure of the 

property or financial obligations of the other party; 

b. Did not voluntarily and expressly waive, in writing, 

any right to disclosure of the property or financial 

obligations of the other party beyond the disclosure 

provided; and 

c. Did not have, or reasonably could not have had, an

 adequate knowledge of the property or financial 

 obligations of the other party.27

In paragraphs (1) and (2) of Subsection 326(a) of the Act, the General 

Assembly provided two independent bases to challenge the enforceability of a 

 

25 Pl. Response, Ex. C, at 7.

26 See 13 Del. C. §§ 321–28 (where the General Assembly enacted Delaware’s version of the 

UPAA).

27 13 Del C. § 326.
12

premarital agreement: involuntariness in execution or unconscionability. In the

underlying litigation, Mr. Sherman’s ex-wife challenged the Agreement based upon 

both. 

With regard to unconscionability, Ms. Jones opines that had Mr. Ellis included 

a provision mirroring the language in subparagraph (a)(2)b, it would have acted as a 

“silver bullet” to any challenge to the Agreement based upon unconscionability. Mr. 

Sherman provided a written disclosure of his property and obligations as required 

by subparagraph (a)(2)a, and the Supreme Court held it to be fair and reasonable. 

However, the Agreement included no waiver as contemplated in subparagraph 

(a)(2)b. That, according to Mr. Sherman’s theory of the case, would have limited 

the arguments in Family Court, and later in the Delaware Supreme Court, to whether 

his former wife executed the Agreement voluntarily. That limited scope, in turn, 

Mr. Sherman argues, would have prevented the need to litigate the highly factual 

issue of the fairness and reasonableness of the disclosure as referenced in

subparagraph (a)(2)a. 

Mr. Ellis counters that there is no meaningful way to interpret subparagraphs 

(a)(2)a and (a)(2)b to provide any guidance of value to an agreement drafter. He

further argues that regardless of whether he included (a)(2)b’s waiver of disclosure 

language in the Agreement, the parties would have still needed to litigate the issue 

presented under (a)(2)a — that is, whether the initial disclosure was fair and 

reasonable. 

Mr. Ellis reasonably argues that the interrelationship of these two provisions 

is unclear. They seem to contradict each other to a certain extent. Namely, the 

statute requires that there be a “fair and reasonable disclosure” on one hand, while 

also permitting a written waiver of disclosure on the other hand. The only qualifying 

language in the Act regarding the nature of the waiver is that it is effective “beyond 

the disclosure provided.” The Act does not define that phrase. It is unclear whether 
13

a correction to the first disclosure would qualify as one being “beyond the disclosure 

provided.” It is also unclear regarding whether a “disclosure beyond the disclosure 

provided” could obviate the need for a party to provide a fair and equitable disclosure 

in the first instance. At oral argument, neither party provided the Court with 

authority addressing the interrelationship of the two provisions. 

In written supplements, both parties provided contrary persuasive authority

supporting contrary readings of the UPAA.

28 The Court’s overriding goal in 

statutory construction must be to implement the General Assembly’s intent.

29

 When 

doing so, it must first look to the plain language of the statute.30 Here, in the 

underlying litigation, the Delaware Supreme Court addressed the statute’s structure

as follows:

to render the premarital agreement unenforceable under the statute

[based upon unconscionability], the spouse contesting enforcement 

must prove that the agreement is unconscionable and prove three other 

grounds – lack of fair and reasonable disclosure of the other spouse’s 

property or financial obligations, non-waiver, and lack of adequate 

knowledge of [the other spouse’s] property and financial obligations.

31

 

In this matter’s underlying litigation, the Supreme Court did not expressly 

address the effect of failing to include a waiver of disclosure provision. Nor was it 

necessary for the Court to define “non-waiver” in the passage quoted above. 

 

28 Mr. Ellis offers a Kansas Supreme Court decision interpreting the provision in the UPAA to 

refer to “a waiver of any future disclosures, and not to a waiver of any and all disclosures made in 

the past.” Davis v. Miller, 7 P.3d 1223, 1229–30 (Kan. 2000) (emphasis added). Mr. Ellis also 

cites a Georgia appeals court decision holding that the UPAA does not provide that the waiver of 

disclosure provisions is a “silver bullet.” Kwon v. Kwon, 775 S.E.2d 611, 615–16 (Ga. App. Ct. 

2015). In response, Mr. Sherman cites an Illinois appellate court decision, In re Marriage of 

Solano, 124 N.E. 3d 1097 (Ill. App. Ct. 2019). In that decision, the Illinois court held that the 

waiver of disclosure provision in the UPAA is effective as to all disclosures, past and present. Id.

at 1111.

29 Zambrana v. State, 118 A.3d 773, 775–76 (Del. 2015).

30 Friends of H. Fletcher Brown Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del. 2011)

(quoting Caminetti v. United States, 242 U.S. 470, 485, (1917)).

31 Silverman 206 A.2d at 832–33 (emphasis added).
14

Nevertheless, its statutory interpretation of Subsection 326(a) controls. When 

applying this interpretation, it follows that whatever further disclosures “beyond the 

disclosure provided” are, if the premarital agreement includes language waiving 

such a disclosure, then it is impossible for the challenging party to invalidate a 

premarital agreement based upon unconscionability. 

Mr. Ellis relies upon the rule of statutory construction that statutes should not 

be read to render their provisions meaningless.32 In this regard, he argues that the

two subparagraphs when read in pari materia, cannot be reconciled. Regardless of 

the difficulty in interpreting and applying the two provisions, the Act’s plain 

language must control. Here, the policy and rationale behind including such a “silver 

bullet” is for the General Assembly to decide, not the Court. By including 

subparagraph (a)(2)b in the Act, the General Assembly has permitted any party who 

includes a waiver of disclosure provision in a premarital agreement to in all cases 

defeat a challenge to the Agreement based upon alleged unconscionability. As the 

Delaware Supreme Court recognized in the underlying case, “[i]t may be time to 

take another look at Delaware’s premarital agreement law . . .”33 When observing 

this, the Supreme Court based this recommendation, in part, upon the circumstances 

of this case (in the underlying litigation) and, in part, upon other states’ decisions to 

adjust the UPAA based upon their experiences.34

On balance, given the Delaware Supreme Court’s guidance in Silverman, the 

plain language of the statute, and persuasive authority interpreting the UPAA 

consistently with Ms. Jones’s interpretation, there is an adequate foundation for Ms. 

Jones’s interpretation. As a result, in total, the record includes competing opinions 

 

32 See 1A Sutherland Statutory Construction § 21:1 (7th ed.) (explaining that [c]ourts should 

construe a statute, if possible, so no term is rendered superfluous or meaningless”).

33 Silverman, 206 A.3d at 834, n. 46.

34 Id. 
15

regarding the necessary standard of care that applied in 1997 to an attorney drafting 

a premarital agreement designed to protect a client’s assets.35 The opposing experts 

evaluated Mr. Ellis’s performance in light of the applicable standards of care that 

they described.36 These competing opinions create issues of fact regarding the 

applicable standard and whether Mr. Ellis breached it.

37

 As a result, summary 

judgment is inappropriate on those bases.

Proximate cause in a transactional legal malpractice claim must be 

evaluated under the same traditional principals of tort law that apply to 

litigation malpractice claims.

In Delaware, the elements of a legal malpractice claim include “(1) the 

employment of the attorney; (2) the attorney’s neglect of a reasonable duty; and (3) 

the fact that such negligence resulted in and was the proximate cause of loss to the 

 

35 Delaware adopted the Act the year prior, in 1996. 70 Del. Laws ch. 462, § 2 (1996).

 Compare also Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 47 providing:

Q: Any time an attorney, in your opinion represents a spouse seeking to protect his 

or her assets in drafting a prenuptial agreement, is it your belief that any time 

that they did not suggest including that waiver language, they are committing 

malpractice to their client?

A: Probably yes.

with Pl. Response, Ex. E “Deposition of Kathryn Laffey,” at 55 providing:

Q: So you don’t believe the standard of care of the Delaware family lawyer 

preparing a prenuptial agreement requires this inclusion of this disclosure 

waiver language?

A: Certainly not in 1997.

36 Compare Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 102.

Q: And again, is it your opinion within a reasonable degree of professional certainty 

based on your professional experience, that Mr. Ellis’ failure to include the 

waiver language . . . was a deviation from the applicable standard of care 

expected of a Delaware family lawyer?

A: Yes, it was. It was a deviation.

with Pl. Response, Ex. E “Deposition of Kathryn Laffey,” at 50.

Q: Do you believe that Stephen Ellis deviated from the applicable standard of care 

in the drafting of this document?

A: No.

37 See Streevy v. Roberts, 2007 Del. Super. LEXIS 2634 (Del. Super. Mar. 21, 2007) (explaining 

that “competing expert testimony is a classic issue of fact for the jury”).
16

client.”38 Often, legal malpractice claims arise out of an attorney’s conduct during 

the course of litigation. In those circumstances, the plaintiff must “demonstrate that 

the underlying action would have been successful but for the attorney’s 

negligence.”39 

In the litigation context, the general rule requires analyzing a “case within a

case.” Namely, a legal malpractice plaintiff cannot succeed in a claim unless he or 

she can demonstrate that but for the defendant’s negligence in a litigated case, the 

plaintiff would have won.40 While Delaware case law has not used the specific “case 

within a case” nomenclature, Delaware law aligns directly with that general 

approach in litigation malpractice cases. Namely, in Flowers v. Ramunno,

41 the 

Delaware Supreme Court articulated the causation standard for such a claim. In that

decision, the Court required the plaintiff to “demonstrate that the underlying action 

would have been successful but for the attorney’s negligence.”42 

Other legal malpractice actions, however, stem from attorney representations 

in transactions. Legal malpractice actions in the transactional context often do not 

look back on the success or failure of litigation, but involve evaluating an attorney’s 

actions that, at the time, looked forward toward a future deal, settlement, or the

prevention of litigation. 

Distilling a general rule for transactional malpractice cases has caused more 

uncertainty than in the binary, win versus lose, litigation setting. Transactional legal 

malpractice cases may arise from an attorney’s drafting of a release, or as in this 

case, a premarital agreement. In such transactional representation claims, some of 

those cases follow a loss to the client in litigation. Such cases fit more easily within 

 

38 Weaver v. Lukoff, 511 A.2d 1044, 1986 WL 17121, at *1 (Del. July 1, 1986) (TABLE).

39 Flowers v. Ramunno, 27 A.3d 551, 2011 WL 3592966 at *2 (Del. Aug. 16, 2011) (TABLE).

40 Id.

41 Id.

42 Id. (emphasis added).
17

the general rule for causation used in litigation malpractice. At some point, there

was often a poor result in an underlying suit. 

Other transactional malpractice cases, however, stem from lost profits, a 

disappointing settlement or sale price, or a lost benefit of the bargain. For instance, 

they may include claims that an attorney’s malpractice caused lost profits in a deal 

that the parties did not consummate, or did so under less favorable terms than were 

possible. These claims may also, inter alia, involve lost net profit because an 

attorney either negligently prepared documents or negligently represented a party in 

negotiations. In those transactional malpractice cases, the success of an “underlying 

action” cannot be gauged in binary terms such as winning or losing. 

To date, the Delaware Supreme Court has not addressed the standard for 

proximate cause in transactional malpractice claims.43 A number of other 

jurisdictions have examined the issue and align in two camps.44 Some jurisdictions 

continue to use a “case within a case” framework while modifying its application by 

applying a “but for” causation requirement in the transactional context. On the other 

hand, some courts provide for a more relaxed causation approach in transactional 

legal malpractice cases due to the number of variables involved in a successful 

transaction. Mr. Sherman advocates this relaxed approach and equates it to a loss of 

 

43 But see Dickerson v. Murray, 2016 WL 1613286 at *4 (Del. Super. Mar. 24, 2016) (relying upon 

a decision of the Court of Appeals of Ohio to explain application of the “walk away” scenario in 

legal malpractice claims in a manner that seems to relax the standard for proximate cause without 

articulating the standard). 

44 See George S. Mahaffey Jr., CAUSE-IN-FACT AND THE PLAINTIFF'S BURDEN OF PROOF 

WITH REGARD TO CAUSATION AND DAMAGES IN TRANSACTIONAL LEGAL 

MALPRACTICE MATTERS: THE NECESSITY OF DEMONSTRATING THE BETTER DEAL, 37 

Suffolk U. L. Rev. 393 (2004) [hereinafter Cause-in-Fact] (generally discussing legal malpractice 

and specifically addressing the dispute regarding the causation in transactional malpractice claims, 

including the “Case-within-a-Case” approach). See also John M. Palmeri & Franz Hardy, 

TRANSACTIONAL LEGAL MALPRACTICE CLAIMS: Application of the “Case within a Case” 

Standard, 50 No. 3 DRI For Def. 48 (2008) (noting that, in the author’s opinion, the majority of 

courts that have addressed causation in a transactional malpractice claim have adopted the case 

within a case standard).
18

chance type action. He argues that there is a cognizable malpractice claim if an

attorney’s actions merely resulted in a loss of chance to avoid excess litigation.

At least one secondary source has characterized the “case within a case” 

approach as representing the general rule in the transactional context.45 The most 

cited case supporting this approach is the Supreme Court of California’s decision in 

Viner v. Sweet.

46

 That court reasoned that:

[there is] nothing distinctive about transactional practice that would 

justify a relaxation of, or departure from, the well-established 

requirement in negligence cases that the plaintiff establish causation by 

showing either (1) but for the negligence, the harm would not have 

occurred, or (2) the negligence was a concurrent independent cause of 

the harm.

47

 

There, the court rejected an intermediate appellate court’s reasons for relaxing the 

but for test for causation. The lower court relaxed the standard because of the large 

number of variables necessary to evaluate transactional success when compared to 

success in litigation. In rejecting a relaxed causation standard, the Supreme Court 

of California observed that “[c]ourts are properly cautious about making attorneys 

guarantors of their clients’ faulty business judgment.”

48

 

Other high courts have likewise required a showing of “but for” causation. 

For instance, the Supreme Court of Minnesota formally adopted this approach in the 

transactional setting in Jerry’s Enterprises, Inc. v. Larkin et al.49 There, the court 

held that in a transactional malpractice matter, “the [proximate cause of damages 

element] of a cause of action is modified to show that, but for defendant’s conduct, 

 

45 See Palmeri & Hardy, TRANSACTIONAL LEGAL MALPRACTICE CLAIMS: Application of the 

“Case within a Case” Standard (describing the “case within a case” standard as the majority 

approach).

46 70 P.3d 1046 (Cal. 2003). 

47 Id. at 1051.

48 Id. at 1053 (citing Bauman, Damages for Legal Malpractice: An Appraisal of the Crumbling 

Dike and Threatening Flood (1988) 61 TEMP. L. REV. 1127, 1154–55).

49 711 N.W.2d 811 (Minn. 2006).
19

the plaintiff would have obtained a more favorable result in the underlying 

transaction than the result obtained.”50 When articulating this standard, the Supreme 

Court of Minnesota held that without a demonstrated failure in the underlying 

transaction, proximate cause cannot be established under this rule.51 This approach 

fits loosely within a “case within a case” analysis. In order to prove causation under 

this standard, a plaintiff must demonstrate consequences that resulted from the 

alleged negligence in contrast to what should have resulted from the transaction.52

Courts applying this but for standard in transactional malpractice cases require

evidence of the potential missing links in the causal chain. Specifically, in claims 

involving an alleged failure to “obtain or advise of a provision, concession or benefit, 

the [plaintiff-]client must prove that the other party would have agreed.”53 Evidence 

that the other party “might have” agreed to the term is insufficient to meet this 

showing.54 These courts reason that without such a showing, juries would have to 

speculate regarding a myriad of possibilities that could have occurred following the

suggestion or failure to suggest an additional term to an agreement. The California 

Supreme Court and the Supreme Court of Virginia have both required plaintiffs to 

meet this burden.

55

 In doing so, they recognize that absent evidence that the other 

 

50 Id at 819; See also Adams v. Manion, 2017 WL 2729603 at *2 (Minn. Ct. App. June 26, 2017)

(quoting Jerry’s Enterprises, Inc., 711 N.W.2d at 819); Viner, 70 P.3d at 1054 (finding that a 

plaintiff must show “but for the alleged malpractice, it is more likely than not that the plaintiff 

would have obtained a more favorable result”).

51 Id.

52 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.5 (2019 ed.).

53 Id. (citing Hazel & Thomas, P.C. v. Yavari, 465 S.E.2d 812, 815 (Va. 1996)).

54 Id. (citing Hazel, 465 S.E.2d at 815 (finding the plaintiff did not show the other party would 

have still agreed to the contract where the other party stated he did not know if he would have 

granted a request for the added provision in the agreement at issue, but “certainly would have 

found a way to make the deal happen”)).

55 Viner, 70 P.3d at 1053; Hazel, 465 S.E.2d at 815.
20

party would have likely agreed to the term, a plaintiff-client has not shown that the 

negligence proximately caused a loss.

56

The Court recognizes that apart from these jurisdictions, others relax the 

nexus necessary to demonstrate proximate cause of harm. For instance, Mr. 

Sherman relies upon the Wisconsin decision in Estate of Campbell v. Chaney.

57

 In 

that decision, the Court of Appeals of Wisconsin examined a claim involving a 

premarital agreement.58 The plaintiff alleged that because of how a drafting attorney 

structured an agreement, the plaintiff had to engage in unnecessary litigation.

59

 

Namely, in Chaney, the underlying case settled before a final decision, but after 

some litigation.60 In framing the standard regarding causation, the Wisconsin high 

court required a showing “that the attorneys’ negligence caused weakness in the 

prenuptial agreement and that the weakness caused litigation.”61 The court reasoned 

that it was “immaterial that the agreement might later be enforced after a finding that 

the widow already knew the financial information . . .. [I]f [a failure] caused the 

[plaintiff] to settle a claim that a proper agreement would have made meritless, then 

the attorney may be held liable.”62 

The defendant-attorney in Chaney argued a strict “case within a case” 

approach to causation; namely, he argued that because the agreement was not 

 

56 See Viner v. Sweet, 117 Cal. App. 4th 1218 (Cal. Ct. App. 2004) (finding on remand, while 

recognizing that an “express concession” by the other party of what they would have agreed to is 

not necessary and that circumstantial evidence can be used to establish causation, that the plaintiff 

did not identify direct or circumstantial evidence of causation in support of the claim); see also

Hazel, 465 S.E.2d at 815 (finding the plaintiff failed to provide sufficient evidence of his attorneys’ 

negligence when he could not point to any evidence that the other party would have agreed to the 

additional provisions).

57 485 N.W.2d 421 (Wis. Ct. App. 1992).

58 Id. at 423.

59 Id. 

60 Id. 

61 Id. at 425.

62 Id.
21

nullified by judicial decision because the parties had settled mid-litigation, there was 

no cognizable malpractice claim.

63

 In rejecting that argument, the Wisconsin high 

court adopted a relaxed standard for causation for transactional based claims.64 

When doing so, that court applied what seems to be an improper burden shift.

65

 

Namely, it denied summary judgment because the defendant-attorney could not 

show that the plaintiff settled despite a strong probability that the plaintiff would 

have prevailed.66 Such an approach does not comport with traditional tort concepts. 

Rather, it constitutes an improper burden shifting in a loss of chance setting. In fact, 

it provides for what is nearly alternative liability. Delaware case law has never 

accepted alternative liability as an exception to the requirement for traditional 

proximate causation.67

The Seventh Circuit Court of Appeals has also held that proving a case within 

a case is unnecessary in transactional legal malpractice claims.68 Namely, in Nicolet 

Instrument Corp. v. Lindquist & Vennum, the Seventh Circuit examined a district 

court’s granting of summary judgment. The district court granted summary 

judgment because the Plaintiff could not prove that the other party would have 

agreed to the term at issue.69 The Seventh Circuit reversed, holding that “but for” 

causation is not the appropriate benchmark in transactional legal malpractice 

 

63 Id.

64 Id. (finding the question for summary judgment purposes was “whether the defendant's alleged 

negligence forced the estate to engage in litigation it otherwise would not have had to engage in”).

65 Id. at 426.

66 Id.

67 State Farm Fire & Cas. Co. v. Middleby Corp., 2011 WL 683883, at *3 (Del. Super. Feb. 8, 

2011) (explaining that “[i]n the nearly twenty-five years that have passed since Nutt [v. A.C. & S. 

Co., Inc., 517 A.2d 690 (Del. Super. 1986)], the legislature has not authorized collective liability 

under either the market-share or alternative liability theories, and the Court perceives no reasoned 

basis for it to impose such a change now”).

68 Nicolet Instrument Corp. v. Lindquist & Vennum, 34 F.3d 453 (7th Cir. 1994)

69 Id. at 455–56.
22

actions.70 To the contrary, it applied what it described as a “not very demanding 

standard.”71 In doing so, it recognized the difficulty of proof of causation in legal 

malpractice cases in even the litigation setting, and the significantly greater difficulty 

involved in the transactional setting where there often is no “right outcome.”72 

Because of that difficulty, the Seventh Circuit relaxed the standard and did not 

require the plaintiff to prove that the other party would have likely agreed to the 

additional term.

73

These cases and others like them differ from Delaware precedent that applies 

traditional concepts of proximate cause consistently among tort claims. In legal 

malpractice claims, the Delaware Supreme Court’s only decision addressing 

causation, although in the litigation malpractice context, recognized that traditional 

proximate cause, with a “but for” floor for liability, applied.74 Alternative liability 

has not been applied in Delaware in any setting.

75

 Moreover, there is no support in 

Delaware law to relax the standard for only one sub-set (transactional legal 

malpractice claims) of one type of claim (legal malpractice claims in general), 

merely because the former, by nature of the challenged attorney action, has an 

increased number of variables that make it more difficult to prove. 

 

70 Id. at 455.

71 Id. 

72 Id.

73 Id.

74 Flowers, 2011 WL 3592966 at *2.

75 Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 694 (Del. Super. 1986) (referencing In re Asbestos 

Litig., 509 A.2d at 1118 when “declin[ing] to adopt the alternative liability theory in Delaware. 

[The Court is] satisfied that such a change in traditional tort law should be left to the legislature”);

In re Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986) (explaining that an assumption of 

product identification would be “mere speculation and would be the establishment of something 

akin to market-share liability . . . , a change in Delaware tort law which if desired this Court 

believes is best left to the legislature”), aff'd sub nom. Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 

1987).
23

A recent Supreme Court of Mississippi decision that addressed a legal 

malpractice claim in the transactional context is persuasive.

76

 In Gulfport OB-GYN, 

P.A. v. Dukes, that court examined a claim involving an employment agreement’s 

covenant not to compete.77 An employee left the plaintiff-client’s medical practice 

to start her own practice and challenged its enforceability.

78

 After the departing 

physician prevailed, the plaintiff-client filed a legal malpractice claim against the 

law firm that drafted the employment agreement because of a missing provision.

79

 

In affirming the lower court’s decision to grant summary judgment, the 

Supreme Court of Mississippi described the required showing of proximate cause 

where an underlying transaction is at issue.

80

 It explained that a legal malpractice 

claim requires a plaintiff to establish proximate cause by the trial-within-a-trial test, 

and that while transactional claims may not involve a “trial” or “case,” the “same 

principles apply: causation ‘turns on whether the attorney’s conduct was the but-for 

cause of the failure to obtain a more favorable result rather than success or failure in 

litigation.’”81 Noting that a substantial majority of courts have followed this rule,

82

the Mississippi court persuasively held that where the

complaint is that the attorney should have proposed different or 

additional terms to a transaction, the malpractice plaintiff must show 

 

76 Gulfport OB-GYN, P.A. v. Dukes, Dukes, Keating & Faneca, P.A., --- So.3d ----, 2019 WL 

4071721 (Miss. Aug. 29, 2019).

77 Id. at *1.

78 Id. 

79 Id.

80 Id. at *2–4.

81 Id. at *2 (quoting Frederick v. Wallerich, 907 N.W.2d 167, 173 (Minn. 2018)) (citing Mahaffey 

Jr., Cause-in-Fact, at 436–37).

82 Id. (citing John M. Palmeri, Franz Hardy, Nicole Salamander Irby, Better Deal or No Deal: 

Causation in Transactional Malpractice Cases, 42 COLO. LAW. 51, 51 (Dec. 2013), which in turn

cited Viner v. Sweet, 70 P.3d 1046 (2003); Serafin v. Seith, 672 N.E.2d 302 (1996); Blackhawk 

Building Systems, Ltd. v. Aspelmeier, Fisch, Power, Warner and Engberg, 428 N.W.2d 288 (Iowa 

1988); Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811 (Minn. 

2006); Froom v. Perel, 872 A.2d 1067 (N.J. App. Div. 2005); Hazel and Thomas, P.C. v. Yavari, 

465 S.E.2d 812 (Va. 1996); Cannata v. Wiener, 789 A.2d 936 (Vt. 2001)).
24

that such terms would have been accepted by the other party or that the 

client would not have entered into the deal and would have been better 

off for doing so. Absent such proof there exists no genuine issue of 

material fact as to causation of damages, and summary judgment is 

appropriate.83

Proving causation in a transactional malpractice claim, as in a litigation 

malpractice claim, requires proof that, but for the attorney’s negligence, the plaintiff 

would have obtained a more favorable result. While ultimate success in litigation in 

a case like Mr. Sherman’s does not per se bar a malpractice claim, when the claim

involves alleged negligence in not proposing or including an additional term in a 

proposed agreement, the plaintiff-client must first show that the other party would 

have agreed to the omitted term. Without evidence of record supporting a reasonable 

inference that the opposing party would more likely than not have agreed to the term, 

there is no genuine issue of material fact regarding proximate cause of damages. 

Mr. Sherman does not demonstrate a genuine issue of material fact regarding 

proximate cause of damages. 

At the outset, Mr. Ellis meets his initial burden on summary judgment as to 

proximate cause. He emphasizes that the Supreme Court held the Agreement to be 

enforceable. As a result, Mr. Sherman prevailed in the underlying litigation. 

Accordingly, the burden shifts to Mr. Sherman to demonstrate an issue of fact 

regarding proximate cause of harm.

In response to Mr. Ellis’s motion, Mr. Sherman emphasizes the conflicting

deposition testimony of the expert witnesses.84 He also claims the amount of 

damages he suffered are not speculative because his litigation attorney, Mr. Gagne, 

quantified the alleged harm as extra fees and costs incurred during the Family Court 

 

83 Id. at *4.

84 Pl. Response, at 3–8.
25

litigation and Supreme Court appeal.

85 In his testimony, Mr. Gagne provides an 

estimate of the attorneys’ fees that Mr. Sherman would have incurred had the waiver

of disclosure language been included in the Agreement.86 Specifically, Mr. Gagne 

believed there would have been no need to hire experts for the Family Court 

litigation,

87 and that the trial in Family Court would have taken approximately onehalf a day.88 He conceded, however, that he would have still taken some depositions 

and would have had to litigate the matter in Family Court.89 Based on this reasoning, 

Mr. Gagne estimated that the litigation would have cost Mr. Sherman approximately 

$35,000 to $50,000 in comparison to the $310,000 he charged him.

90

 

Mr. Gagne’s estimation of the difference in costs—or in other words, an 

identification of the amount of damages Mr. Sherman incurred—provides sufficient 

evidence for a reasonable jury to fix an amount of damages. That, however, is not 

all that is required. There must be sufficient evidence for it to reasonably infer that 

the alleged negligence proximately caused the harm. 

The evidence of record when considered in the light most favorable to Mr. 

Sherman does not permit that bridge. Namely, Mr. Sherman does not meet his 

burden by demonstrating that there is a genuine issue of fact regarding whether the 

costs and fees would not have been incurred but for Mr. Ellis’s alleged negligence.91

 

85 Id. at 9–10.

86 Pl. Response, Ex. F, at 42–43.

87 Id. at 42:7–42:13 (stating “[s]o with the waiver language in, I would not have retained the experts 

for the valuations . . . I believe the expert costs and fees associated with depos, and that was to 

38,000.00”).

88 Id. at 42:18–42:19 (stating “[i]t would have been probably a half day trial”).

89 Id. at 42:13–43:4 (stating “I would have had to go to a trial in Family Court, nonetheless, I would 

have had the waiver – I still would have taken Tom Gay’s deposition, which I did. I still would 

have done that even under the err [sic] set of circumstances . . . I still would have taken Ms. 

Sherman’s deposition . . . [Mr. Sherman] would have been . . . And I assume Ms. Dougherty would 

have taken Mr. Ellis’s deposition even had the waiver language be [sic] in there”).

90 Id. at 43:4–43:18 (stating “[a]n estimate, probably 35 to 50 [thousand dollars]”).

91 Flowers, 2011 WL 3592966 at *2.
26

Because the underlying action is a transaction and involves the claim that Mr. Ellis 

failed to include a particular provision in the Agreement, Mr. Sherman would have

to demonstrate evidence justifying a jury’s inference, that more likely than not, his 

ex-wife would have accepted the Agreement with the additional provision. 

In this regard, the Court recognizes that the evidence permits a clear inference 

that she might have.

92 This “might have” evidence includes the ex-wife’s agreement 

to other unfavorable terms, and Ms. Jones’s expert opinion.93 Alone, the former 

does not constitute a circumstance supporting an inference of a probability that Mr. 

Sherman’s ex-wife would have agreed to a wholly separate term. In addition, Ms. 

Jones conceded the same in her deposition testimony where she admitted that 

speculation would be necessary to make that assumption.94 In support of Ms. Jones’s 

opinion regarding proximate cause of harm, she cited the fact that Mr. Sherman’s

ex-wife signed the Agreement against her attorney’s advice. Nevertheless, Ms. 

Jones testified that she does not “think there is any way of knowing where [sic] 

whether she would have refused signing the prenup if that statement had been in 

there or not.”

95 In fact, she confirmed the degree of speculation regarding the exwife’s agreement to such a term to be “pure speculation.”96

Here, the record contains no testimony from Mr. Sherman’s ex-wife, one of 

the two parties to the Agreement, bearing on this material issue. Nor does it contain 

testimony from the attorney who advised her. As recognized in the Viner decision, 

while an express concession of acceptance is not necessary to prove proximate cause 

 

92 See Mallen & Smith, Legal Malpractice (citing Hazel, 465 S.E.2d at 815 when explaining that 

it is “not sufficient to show that the other party ‘might have’ agreed” to prove proximate cause of 

harm in a transactional malpractice claim).

93 Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 39:15–46:5.

94 Id. at 40:1–40:4.

95 Id. at 41:12–41:15.

96 Id. at 41:15.
27

of harm, there must at a minimum be circumstantial evidence of a probability of 

acceptance of the term.

97

The Court recognizes that proving proximate cause of harm will often be 

challenging in circumstances, such as the one at hand, where the decision maker was 

and remains an adverse party to the malpractice-plaintiff. As the California Supreme 

Court correctly recognized in Viner, however, “difficulties of proof cannot justify 

imposing liability for injuries that the attorney could not have prevented by 

performing according to the required standard of care.”98 On balance, the record 

contains no evidence—direct or circumstantial—that permits a reasonable inference 

that Mr. Sherman’s ex-wife would have more likely than not agreed to this critical 

term. Because (1) the but for standard for proximate cause represents the evidentiary 

floor for establishing proximate cause, and (2) a critical link in the causal chain is 

missing in this record, summary judgment must be granted in favor of Mr. Ellis. 

Conclusion

When considering the facts of record in the light most favorable to Mr. 

Sherman, there is no genuine issue of material fact regarding whether Mr. Ellis

proximately caused Mr. Sherman’s alleged damages. As a result, Mr. Ellis’s Motion 

for Summary Judgment must be GRANTED.

 

97 Viner, 70 P.3d at 1053.

98 Id.