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Advanced Torts
A Context and Practice Casebook
Alex B. Long
University of Tennessee College of Law
Meredith J. Duncan
University of Houston Law Center
Carolina Academic Press
Durham, North Carolina
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Copyright © 2014
Carolina Academic Press
All Rights Reserved
ISBN 978-1-61163-099-2
LCCN 2013958181
Carolina Academic Press
700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
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Contents
Table of Cases
Series Editor’s Preface
Preface
xvii
xix
xxi
Part 1 · Advanced Torts for Lawyers
Chapter 1 · Introduction
A. Advanced Torts: The Lawyer’s Perspective
McDaniel v. Gile
Motheral v. Burkhart
Cunningham v. Jensen
B. Organization of the Book
3
3
5
8
9
10
Chapter 2 · Vicarious Liability
Exercise 2.1: Chapter Problem
A. Scope of Employment
1. Vicarious Liability Stemming from Negligent Conduct
Chorey, Taylor & Feil, P.C. v. Clark
O’Toole v. Carr
2. Vicarious Liability Stemming from Intentional Misconduct and Breach
of Fiduciary Duty
Lyon v. Carey
Goodman v. Holmes & McLaurin Attorneys at Law
Federal Savings & Loan Ins. Corp. v. McGinnis, Juban,
Bevan, Mullins
Exercise 2.2
B. Independent Contractors and Nondelegable Duties
Kersten v. Van Grack, Axelson & Williamowsky, P.C.
C. Other Forms of Vicarious Liability
1. Partners and Apparent Authority
Exercise 2.3
2. Co-Counsel and Joint Ventures
Armor v. Lantz
D. Limited Liability Partnerships and Insurance Coverage
Mendel v. Home Ins. Co.
13
13
14
14
14
16
vii
21
21
25
27
31
31
32
37
38
38
39
39
42
43
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CONTENTS
Part 2 · Legal Malpractice and Breach of Fiduciary Duty
Chapter 3 · Breach of Fiduciary Duty
Exercise 3.1: Chapter Problem
A. Breach of Fiduciary Duty to a Client
Klemme v. Best
Burrow v. Arce
Exercise 3.2
1. Duty of Loyalty
Stanley v. Richmond
2. Duty of Confidentiality
Sealed Party v. Sealed Party
3. Duty to Avoid Conflicts of Interest
So v. Suchanek
B. Breach of Fiduciary Duties Owed to Partners, Associates, and the Firm
Starr v. Fordham
C. Breach of Fiduciary Duties to “Non-Clients”
Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P.C.
Chem-Age Indus., Inc. v. Glover
D. Remedies
Maritrans GP Inc. v. Pepper, Hamilton & Scheetz
E. Defenses to Claims of Breach of Fiduciary Duty
49
49
50
50
53
59
61
61
67
68
76
76
81
81
84
84
87
93
93
101
Chapter 4 · Professional Malpractice: Duty and Breach
Exercise 4.1: Chapter Problem
A. Generally
Togstad v. Vesely, Otto, Miller & Keefe
B. Standard of Care in Professional Malpractice — Duty
Kirsch v. Duryea
Simko v. Blake
1. The Role of the Expert in Establishing Duty and Breach
Rizzo v. Haines
2. The Role of Professional Standards (Including Disciplinary Rules) in
Establishing Duty and Breach
Hizey v. Carpenter
C. The Locality Rule
Chapman v. Bearfield
D. Specialists
Hizey v. Carpenter
E. Special Issues: Duties to “Non-Clients” in Legal Malpractice
Greycas, Inc. v. Proud
Lucas v. Hamm
Exercise 4.2: Review Problem
103
103
104
104
110
110
114
122
122
Chapter 5 · Professional Malpractice: Causation
A. Generally
Exercise 5.1: Chapter Problem
Smith v. Lewis
B. Causation in Fact: The “Case-within-a-Case” Issue in Legal Malpractice
Vahila v. Hall
147
147
147
148
154
154
126
127
132
132
136
136
137
139
143
146
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CONTENTS
1. Litigation Malpractice
Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C.
2. Transactional Malpractice
Viner v. Sweet
3. Reverse Bifurcation
C. Loss of Chance
Daugert v. Pappas
D. Proximate Cause
Cleveland v. Rotman
Andrews v. Saylor
E. Special Issues in Proving Causation
1. Proof of Collectibility
Exercise 5.2
Paterek v. Petersen & Ibold
2. Criminal Malpractice, Actual Innocence, and Post-Conviction Relief
Wiley v. County of San Diego
ix
159
159
166
166
174
174
174
180
180
183
190
190
190
191
198
198
Chapter 6 · Professional Malpractice: Damages
Exercise 6.1: Chapter Problem
A. Compensatory Damages
1. Pecuniary Harm
Carbone v. Tierney
Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP
2. Emotional Distress Damages
Long-Russell v. Hampe
B. Punitive Damages
Metcalfe v. Waters
215
216
216
216
217
224
233
234
240
240
Chapter 7 · Professional Malpractice: Defenses
Exercise 7.1: Chapter Problem
A. Plaintiff ’s Conduct
Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp.
Behrens v. Wedmore
Jackson State Bank v. King
B. Release
Rich v. Ellingson
245
245
246
246
250
257
262
262
Part 3 · Defamation
Chapter 8 · Defamation: The Prima Facie Case at Common Law
Exercise 8.1: Chapter Problem
A. Publication
Exercise 8.2
B. Defamatory Statements
1. Generally
Marcone v. Penthouse International Magazine for Men
James v. Gannett Co.
2. Special Considerations: Defamation Per Se and Defamation Per Quod
a. Libel Per Se and Libel Per Quod
b. Slander Per Se and Slander Per Quod
269
269
270
271
272
272
273
275
277
277
278
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CONTENTS
Exercise 8.3
Exercise 8.4
C. Of and Concerning the Plaintiff
Ratner v. Young
Handelman v. Hustler Magazine, Inc.
D. Damages
Marcone v. Penthouse International Magazine for Men
E. The Role of Truth
Rouch v. Enquirer & News of Battle Creek
278
278
279
279
280
282
283
284
284
Chapter 9 · Defamation: Constitutional Constraints
Exercise 9.1: Chapter Problem
A. The New York Times v. Sullivan Standard: Public Officials, Public Figures,
and Actual Malice
New York Times Co. v. Sullivan
B. Private Figures and Matters of Public Concern
Gertz v. Robert Welch, Inc.
C. Private Figures and Matters of Private Concern
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Exercise 9.2
D. Actual Malice and the Classification of Plaintiffs as Public Officials, Public
Figures, or Private Figures
1. Public Officials
Tague v. Citizens for Law & Order, Inc.
2. All-Purpose Public Figures and Limited-Purpose Public Figures
Wolston v. Reader’s Digest Ass’n, Inc.
Ratner v. Young
Bandelin v. Pietsch
Marcone v. Penthouse International Magazine for Men
Exercise 9.3
E. Actionable and Non-Actionable Statements
Milkovich v. Lorain Journal Co.
Standing Committee on Discipline v. Yagman
289
289
Chapter 10 · Defamation: Privileges and Defenses
Exercise 10.1: Chapter Problem
A. Absolute Privileges
1. The Judicial Proceedings Privilege
a. Made in the Course of Judicial Proceedings
Miner v. Novotny
Exercise 10.2
Exercise 10.3
Messina v. Krakower
b. By Privileged Parties
c. Having Some Relation to the Proceeding
Arneja v. Gildar
Green Acres Trust v. London
2. The Privilege for Executive, Legislative, or Judicial Officers
3. Consent
337
337
338
338
338
339
343
343
344
346
347
347
350
353
355
290
290
298
298
303
303
306
307
307
307
311
312
316
318
321
327
327
327
331
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CONTENTS
Exercise 10.4
Smith v. Holley
Exercise 10.5
B. Qualified Privileges
1. The Common Interest Privilege
Zinda v. Louisiana Pacific Corp.
2. The Privilege to Publish in Defense of Oneself
3. The Privilege to Publish in the Interest of Others
Kevorkian v. Glass
Exercise 10.6
C. Privileges Involving the Media
1. Fair Reporting Privilege
Express Pub. Co. v. Gonzalez
2. The Neutral Reporting Privilege
3. Fair Comment
Vernon’s Texas Statutes and Codes Annotated
4. Retraction Statutes
Exercise 10.7
Vernon’s Texas Statutes and Codes Annotated
Code of Georgia
California Civil Code
xi
355
355
360
360
361
361
365
365
366
368
369
369
369
372
373
373
374
374
374
374
375
Part 4 · Economic and Dignitary Torts
Chapter 11 · Fraudulent Misrepresentation
Exercise 11.1: Chapter Problem
A. The Prima Facie Case
1. Knowledge and Intent
Exercise 11.2
2. Misrepresentation of Fact, Opinion, Intention, or Law
a. Misrepresentation of Fact
Schlaifer Nance & Co., Inc. v. Estate of Warhol
Wright v Pennamped
b. Misrepresentation of Opinion
Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp.
c. Misrepresentation of Intention
Exercise 11.3
d. Misrepresentation of Law
Exercise 11.4
3. Justifiable Reliance
Fire Insurance Exchange v. Bell
Exercise 11.5
4. Causation and Damages
Exercise 11.6
Exercise 11.7
B. Defenses
1. The Litigation Privilege
Exercise 11.8
2. The Economic Loss Rule
379
379
379
380
380
381
381
381
382
388
388
395
395
395
395
395
396
398
399
400
400
400
400
401
401
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CONTENTS
Chapter 12 · Negligent Misrepresentation
Exercise 12.1: Chapter Problem
A. Determining the Scope of Liability
1. The Privity Test
Ultramares Corp. v. Touche
2. The Section 552 Test
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests
Exercise 12.2
Exercise 12.3
3. Traditional Negligence/Foreseeability Principles
Citizens State Bank v. Timm, Schmidt & Co., S.C.
4. Justifiable Reliance
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests
Kastner v. Jenkens & Gilchrist, P.C.
Exercise 12.4
B. Damages
C. Defenses: Comparative Negligence
Greycas, Inc. v. Proud
403
403
404
405
405
410
410
415
416
416
416
419
420
421
423
424
424
424
Chapter 13 · Other Remedies for Deceptive Practices
A. Consumer Protection Statutes
Exercise 13.1
1. Prohibition of Unfair or Deceptive Acts
a. In General
Florida Statutes Annotated
Tennessee Code, § 47-18-104
b. Unfair Acts
Exercise 13.2
FTC Policy Statement on Unfairness
c. Deceptive Acts
Exercise 13.3
FTC Policy Statement on Deception
2. Coverage
Florida Statutes Annotated
a. Transactions between Consumers and Merchants
Lantner v. Carson
b. Covered Transactions
Force v. ITT Hartford Life & Annuity Ins. Co.
c. Coverage of Professional Services
Short v. Demopolis
Cripe v. Leiter
3. Enforcement and Remedies
B. Fair Debt Collection Practices Act
Exercise 13.4
Heintz v. Jenkins
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA
C. Attorney Deceit Statutes
Amalfitano v. Rosenberg
Exercise 13.5
429
429
429
430
430
430
431
433
433
433
436
436
436
438
438
438
439
441
442
443
444
448
455
455
455
457
460
465
465
468
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CONTENTS
xiii
Chapter 14 · Interference with Contractual Relations
Exercise 14.1: Chapter Problem
A. Original Development of the Torts
1.The Prima Facie Tort Approach
Chaves v. Johnson
2. The Restatement (Second) of Torts Balancing-of-Factors Approach
3. The Improper Purpose or Improper Means Test
Top Service Body Shop, Inc. v. Allstate Ins. Co.
B. Modern Developments: Interference with Contract vs. Interference with
Prospective Contract vs. Interference with Contracts Terminable At-Will
1. Interference with Contract vs. Interference with Prospective Contract
Della Penna v. Toyota Motor Sales, U.S.A., Inc.
Exercise 14.2
2. Interference with Contracts Terminable At-Will
Reeves v. Hanlon
C. Recognized Privileges or Instances in Which a Defendant Does Not
Improperly Interfere
D. Damages
Exercise 14.3
E. Special Issues: Interference Claims in the Legal Profession
1. Advising Clients
Los Angeles Airways, Inc. v. Davis
2. Interference with an Attorney’s Ability to Collect a Fee
a. “Stealing” Clients
Nostrame v. Santiago
b. Improper Settlement
Liston v. Home Insurance Co.
Ingalsbe v. Stewart Agency, Inc.
3. The Litigation Privilege
Exercise 14.4
471
471
472
473
473
478
479
479
Chapter 15 · Invasion of Privacy
Exercise 15.1: Chapter Problem
A. Intrusion upon the Seclusion
McLain v. Boise Cascade Corp.
Mark v. Seattle Times
Tagouma v. Investigative Consultant Services, Inc.
Shulman v. Group W Productions, Inc.
Cal. Civil Code § 1708.8
Exercise 15.2
Exercise 15.3
Exercise 15.4
Exercise 15.5
B. Publicity Given to Private Life
Ozer v. Borquez
Exercise 15.6
Exercise 15.7
Exercise 15.8
Winegard v. Lawson
513
513
514
514
517
519
522
528
529
529
530
530
530
530
534
535
535
536
483
483
483
489
490
491
496
497
497
498
498
499
502
502
503
507
508
510
512
512
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CONTENTS
C. False Light
Magenis v. Fisher Broadcasting, Inc.
Exercise 15.9
D. Misappropriation of the Right of Publicity
Doe v. TCI Cablevision
Chapter 16 · Misuse of the Legal Process
Exercise 16.1: Chapter Problem
A. Malicious Prosecution
1. In General
a. Causing the Commencement or Continuation of a
Criminal Proceeding
Exercise 16.2
b. Without Probable Cause
Exercise 16.3
c. For an Improper Purpose
d. Termination of the Proceeding in Favor of the Accused
Exercise 16.4
e. Damages
f. Defenses
Exercise 16.5
B. Wrongful Initiation of Civil Proceedings
Friedman v. Dozorc
Exercise 16.6
C. Abuse of Process
Board of Education of Farmingdale Union Free School
Dist. v. Farmingdale
Young v. Allstate Ins. Co.
Bonner v. Chicago Title Ins. Co.
Exercise 16.7
D. Anti-SLAPP Statutes
Wilcox v. Superior Court
Mendoza v. Hamzeh
Exercise 16.8
E. Spoliation of Evidence
Cedars-Sinai Medical Center v. Superior Court
Rosenblit v. Zimmerman
Exercise 16.9
540
540
542
542
543
551
551
554
554
554
555
555
555
556
556
556
557
557
557
558
558
562
563
563
566
568
569
569
569
576
580
580
580
587
590
Part 5 · Other Tort Theories
Chapter 17 · Aiding and Abetting and Civil Conspiracy
Exercise 17.1: Chapter Problem
A. Aiding and Abetting Wrongful Conduct in General
Rael v. Cadena
Exercise 17.2
B. Aiding and Abetting a Client’s Wrongful Acts
Tensfeldt v. Haberman
Exercise 17.3
593
593
594
594
595
596
596
601
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CONTENTS
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta
Exercise 17.4
C. Aiding and Abetting Breach of Fiduciary Duty
Thornwood, Inc. v. Jenner & Block
Reynolds v. Schrock
Exercise 17.5
D. Civil Conspiracy
McLaughlin v. Copeland
xv
601
605
606
606
608
614
614
615
Chapter 18 · Bad Faith
A. First-Party Claims
Gonzalez v. Blue Cross/Blue Shield of Alabama
Exercise 18.1
Exercise 18.2
B. Third-Party Claims
O’Neill v. Gallant Ins. Co.
Exercise 18.3
Exercise 18.4
Exercise 18.5
619
619
619
625
625
626
626
636
636
636
Chapter 19 · Wrongful Discharge in Violation of Public Policy
Exercise 19.1: Chapter Problem
A. Exercising a Right
Feliciano v. 7-Eleven, Inc.
B. Fulfilling a Public Obligation
C. Whistleblowing
Balla v. Gambro, Inc.
Weiss v. Lonnquist
D. Refusing to Commit an Unlawful Act
Sabine Pilot Service, Inc. v. Hauck
Johnston v. Del Mar Distributing Co., Inc.
Exercise 19.2: Summary Problem
639
639
640
640
644
644
644
650
654
654
656
659
Index
661
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Table of Cases
Amalfitano v. Rosenberg, 5, 465
Andrews v. Saylor, 183, 249
Armor v. Lantz, 39
Arneja v. Gildar, 345, 347
Balla v. Gambro, Inc., 644
Bandelin v. Pietsch, 318
Bd. of Educ. v. Farmingdale, 563
Behrens v. Wedmore, 250
Bonner v. Chicago Title Ins. Co., 563, 568
Burrow v. Arce, 53, 59, 71, 74
Carbone v. Tierney, 188, 189, 197, 198,
216, 217, 256
Cedars-Sinai Medical Center v. Superior
Court, 580, 590
Chapman v. Bearfield, 132, 135
Chaves v. Johnson, 473, 488
Chem-Age Indus., Inc. v. Glover, 87, 109,
138
Chorey, Taylor & Feil, P.C. v. Clark, 14
Citizens Bank v. Timm, Schmidt & Co.,
416
Cleveland v. Rotman, 180
Cripe v. Leiter, 243, 448
Daugert v. Pappas, 174
Della Penna v. Toyota Motor Sales, U.S.A.,
Inc., 483, 493
Doe v. TCI Cablevision, 543
Dun & Bradstreet, Inc., 303
Express Pub. Co. v. Gonzalez, 369
Fassihi v. Sommers, Schwartz, Silver,
Schwartz & Tyler, P.C., 84, 90
Federal Savings & Loan Ins. Corp. v.
McGinnis, Juban, Bevan, Mullins, 25,
27
Feliciano v. 7-Eleven, Inc., 640
Ferguson v. Lieff, Cabraser, Heimann &
Bernstein, LLP, 223, 224
Fire Insurance Exchange v. Bell, 396
Force v. ITT Hartford Life & Annuity Ins.
Co., 429, 441, 442
Friedman v. Dozorc, 558
Garcia v. Kozlov, Seaton, Romanini &
Brooks, P.C., 159
Gertz v. Robert Welch, Inc., 298, 303, 304,
307, 312, 313, 315
Gonzalez v. Blue Cross/Blue Shield of Alabama, 619
Goodman v. Holmes & McLaurin Attorneys
at Law, 25
Green Acres Trust v. London, 350, 361,
365
Greycas, Inc. v. Proud, 139, 424
Handelman v. Hustler Magazine, Inc., 279,
280
Heintz v. Jenkins, 456, 457
Hizey v. Carpenter, 127, 135, 136
Ingalsbe v. Stewart Agency, Inc., 510
Jackson State Bank v. King, 101, 257
James v. Gannett Co., 275
Jerman v. Carlisle, McNellie, Rini, Kramer
& Ulrich LPA, 460
Johnston v. Del Mar Distributing Co., Inc.,
654, 656
Kastner v. Jenkens & Gilchrist, P.C., 421
Kersten v. Van Grack, Axelson &
Williamosky, P.C., 32,
Kevorkian v. Glass, 365, 366
Kirsch v. Duryea, 58, 59, 110
Klemme v. Best, 50
Lantner v. Carson, 439
Liston v. Home Ins. Co., 507, 508
Long-Russell v. Hampe, 234
Los Angeles Airways, Inc. v. Davis, 498,
499, 601
xvii
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xviii
TABLE OF CASES
Lucas v. Hamm, 112, 143, 149, 151, 153
Lyle, Siegel, Croshaw & Beale P.C. v. Tidewater Capital Corp., 110, 246
Magenis v. Fisher Broadcasting, Inc., 540
Marcone v. Penthouse International Magazine for Men, 273, 277, 283, 298, 321
Maritrans GP Inc. v. Pepper, Hamilton &
Scheetz, 93
Mark v. Seattle Times, 514, 517
McCamish, Martin, Brown & Loeffler &
F.E. Appling Interests, Martin, 410,
419, 420
McLain v. Boise Cascade Corp., 514, 518
Mendel v. Home Ins. Co., 43
Mendoza v. Hamzeh, 575, 576
Messina v. Krakower, 344
Metcalfe v. Waters, 240, 244
Milkovich v. Lorain Journal Co., 327, 332,
373
Miner v. Novotny, 338, 339
New York Times v. Sullivan, 290, 298, 300,
305, 306, 308, 312, 313, 327, 373, 548
Nostrame v. Santiago, 502, 503
O’Neill v. Gallant Ins. Co., 626
O’Toole v. Carr, 14, 16
Ozer v. Borquez, 530
Paterek v. Petersen & Ibold, 191, 239
Presidio Enterprises, Inc. v. Warner Bros.
Distributing Corp., 388
Rael v. Cadena, 594, 615
Ratner v. Young, 279, 316, 324
Reeves v. Hanlon, 490, 491
Reynolds v. Schrock, 606, 608
Rich v. Ellingson, 262
Rizzo v. Haines, 122, 244
Rosenblit v Zimmerman, 587
Rouch v. Enquirer & News of Battle Creek
Michigan, 284
Sabine Pilot Service, Inc. v. Hauck, 654,
656
Schlaifer Nance & Co., Inc. v. Estate of
Warhol, 381
Sealed Party v. Sealed Party, 68
Short v. Demopolis, 443, 444, 451
Shulman v. Group W. Productions, Inc.,
522
Simko v. Blake, 114
Smith v. Holley, 355
Smith v. Lewis, 112, 148, 153, 223, 226,
231, 582
So v. Suchanek, 76
Standing Committee on Discipline v. Yagman, 331
Stanley v. Richmond, 61, 125, 126
Starr v. Fordham, 81
Stoneridge Inv. Partners, LLC v. ScientificAtlanta, 399, 601, 605
Tagouma v. Investigative Consultant Services, Inc., 514, 519
Tague v. Citizens for Law & Order, Inc.,
307
Tensfeldt v. Haberman, 596
Thornwood, Inc. v. Jenner & Block, 606,
614
Togstad v. Vesely, Otto, Miller & Keefe,
104, 222, 236
Top Service Body Shop, Inc. v. Allstate Ins.
Co., 479, 485
Ultramares Corp. v. Touche, 405, 417
Vahila v. Hall, 154, 193, 212
Viner v. Sweet, 166
Weiss V. Lonnquist, 650
Wilcox v. Superior Court, 569
Wiley v. County of San Diego, 198
Winegard v Lawson, 535, 536
Wolston v. Reader’s Digest Ass’n, Inc., 312
Wright v. Pennamped, 382
Young v. Allstate Ins. Co., 563, 566
Zinda v. Louisiana Pacific Corp., 361
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Series Editor’s Preface
Welcome to a new type of casebook. Designed by leading experts in law school teaching
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In Spring 2007, the Carnegie Foundation published Educating Lawyers: Preparation for
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The problems with traditional law school instruction begin with the textbooks law
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The Context and Practice Series is an effort to offer a genuine alternative. Grounded
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I welcome reactions, criticisms, and suggestions; my e-mail address is mhschwartz@
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Dean and Professor of Law
UALR William H. Bowen School of Law
xix
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Preface
As professors who write and teach in the fields of Torts and Professional Responsibility,
we feel Advanced Torts: A Context and Practice Casebook fills several needs.
First, as the first part of its title implies, the book can be used as casebook for an
Advanced Torts class at those law schools that do not require two semesters of Torts. The
cases included cover nearly every subject covered in an upper-level Torts elective, and the
book includes most of the cases (New York Times v. Sullivan, Ultramares Corp. v. Touche,
etc.) one would expect to find in an Advanced Torts casebook. However, our book also
includes material on subjects such as bad faith claims and consumer protection statutes
that contain a wealth of interesting material, but that often go uncovered in the typical
Torts class. Thus, the book can be used by any Torts professor and any student interested
in learning about the array of theories of civil liability beyond negligence and the intentional
torts covered in a first-year Torts class.
In addition to being an Advanced Torts casebook, the book is designed specifically to
expose aspiring lawyers to the theories of civil liability that may impact them in their professional lives. It is no secret to those who study legal ethics that the threat of legal
malpractice and related claims may pose a greater deterrent to attorney misconduct than
the threat of professional discipline. While law students will inevitably take some type of
course on professional responsibility while in law school, few have the opportunity to
take a course that addresses in any detail the general and specific theories of civil liability
they themselves might one day face as professionals.
Therefore, we conceive of this book as a means of bridging this gap. The book can
certainly be used as part of a standard Advanced Torts class, but many of the cases included
involve lawyers as plaintiffs and (more often) defendants. Students are therefore able to
see the potential pitfalls they may face in practice as well as some of the special legal rules
that apply when a lawyer is a party to the ensuing lawsuit. Thus, the subject matter of
Advanced Torts: A Context and Practice Casebook should resonate with students.
In addition, the book can be used as part of a course devoted to legal malpractice and
related torts. Again, as professors who teach and write in the areas of Torts and Professional
Responsibility, we tend to think that, historically, too few law schools have offered such
courses. For those like-minded individuals, this book may serve as a resource. The first
part of the book is devoted to the special rules regarding legal malpractice. The material
that follows — while more general in nature — devotes significant time to legal theories that
may have special relevance for lawyers in their professional lives. For example, in addition
to exploring the torts of malicious prosecution and abuse of process, the chapter on misuse
of the legal process also addresses spoliation of evidence and anti-SLAPP suits. While
covering more general topics, we have attempted to identify at least some of the special
rules and issues that have developed with regard to lawyers engaged in the practice of law.
Regardless of how an instructor decides to use this book, part of our goal in writing
it was to help law students develop a sense of professionalism. Throughout this book,
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PREFACE
readers will read about defendant-lawyers who have engaged in egregious behavior,
behavior that is entirely consistent with the lawyer’s ethical responsibilities, and behavior
that falls somewhere in between these extremes. We hope that this focus on lawyers acting
in their professional capacities will force students and their instructors to think more
deeply about what it means to practice law in a professional manner. To aid in that goal,
nearly every chapter contains a reference to the relevant rules of professional conduct so
that students can see how a lawyer’s ethical responsibilities square with the lawyer’s legal
responsibilities.
Finally, throughout the process of writing the book, we have endeavored to keep the
goals of the Context and Practice Series (CAP) in mind. A set of focus questions precedes
all of the major cases in the book in order to better focus students’ attention to the
important issues. We have incorporated problems — some detailed, some relatively short —
to allow students to extract the relevant legal principles from the material they have read
and apply those principles in a more practical way. Finally, all of the cases were selected
not just with the goal of helping students understand the material, but with the goal of
helping them understand how the material applies to them as future lawyers.
Alex B. Long
Meredith J. Duncan
