The Silver Bullet

The Delaware Superior Court has granted summary judgment to the defendant in a legal malpractice suit.

The attorney had represented the former client in drafting a pre-marital agreement to protect his client’s assets. The soon-to-be wife had signed the agreement notwithstanding the advice of her counsel.

When divorce came, the ex-wife sought to set aside the agreement on grounds of unconscionability. She prevailed in family court but lost in the Delaware Supreme Court. 

The unhappy former client sued the drafting attorney for the expenses of defending the attack on the agreement, claiming that the attorney’s failure to include a waiver of disclosure clause (a “silver bullet” according to plaintiff’s expert) in the agreement had led to his travails.

The court found disputed questions of fact as to standard of care and breach of that standard but granted summary judgment on causation.

The evidence required speculation on whether the “silver bullet” was agreeable to the ex-wife. 

In a question of first impression, the court applied the same causation test for alleged legal malpractice in transactional matters as in litigation matters.

Because the evidence

does not support an inference that Mr. Sherman’s ex-wife likely 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’s harm.

(Mike Frisch)