Bourke v. Conger, US Ct. of Appels, 7th Circ., April 19, 2011.
Facts: Bourke was convicted of murder in Illinois state court, and after the conviction was turned over on appeal, filed malpractice claims against his defense attorneys. Bourker alleged that defense counsel’s voire dire of the jury fell below acceptable standards of care.
Bourke’s former attorney’s argued that even if they breached their duty to Bourke, he could not establish proximate cause.
Issue: Did Bourke set forth a valid cause of action for legal malpractice?
First, the Court stated the elements of a cause of action for legal malpractice:
A plaintiff asserting a legal malpractice claim based on Illinois law must prove: (1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.
The Court then explained why Bourke failed to establish proximate cause:
Bourke depended exclusively on Thomas’s expert report to establish the causation element of his claim. While expert testimony is one of the types of evidence that a plaintiff like Bourke could normally rely on to ward off summary judgment, it is well established that an expert report that lacks foundation and depth will be given little consideration by courts. In order for an expert report to create a genuine issue of fact, it must provide not merely … conclusions, but the basis for the conclusions. As the district court noted, the Thomas report does not support its conclusion that the Appellees’ performance during voir dire caused the jury to find Bourke guilty with analysis, facts or reasoning. While the report discusses various ways in which the Appellees could have better represented Bourke’s interests (e.g., by using their peremptory challenges, by questioning jurors for their opinions regarding the use of alcohol), this discussion only goes towards establishing that the Appellees breached their duty to Bourke, not causation. The Thomas report fails to identify facts that support its conclusion that the Appellees’ alleged errors had any role in causing the jury to find Bourke guilty. This shortcoming prevents the Thomas report from creating a genuine, disputed issue of fact concerning causation.
Lesson: Plaintiff must establish proximate, in Illinois, by showing that "but for" his attorney’s negligence, he would not have sustained the actual damages complained of. One way to do it is by expert opinion. However, the opinion must be supported by the "whys and wherefores" of the causal connection between the attorney’s breach and the injury or damage complained of.