                                                                                                                   FILED
                                                                                                          COOT OF APPEALS
                                                                                                                 C I' IS10N 11

                                                                                                         20I APR    21}   AM 10: 147




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

CLARK COUNTY FIRE DISTRICT NO. 5
and AMERICAN ALTERNATIVE
INSURANCE CORPORATION,


                                       Appellants,                                   No. 42864 - -II
                                                                                                4
                                                                                    Consolidated with
                                                                                     No. 43970 -1 - II


            v.                                                                PUBLISHED OPINION


BULLIVANT HOUSER BAILEY P. C. and
RICHARD G. MATSON,


                                        Respondent.




            MAxA, J. — Clark      County Fire District No. 5 ( Fire District) and its insurer

American Alternative Insurance Corporation (AAIC) appeal the trial court' s summary

judgment dismissals of their legal negligence claims against the law firm Bullivant

Houser      Bailey   PC   and   attorney Richard Matson ( collectively, Matson). AAIC retained


Matson to defend the Fire District and its employee, Martin James, in a gender


discrimination and sexual harassment lawsuit. The trial of that lawsuit resulted in a jury

verdict in excess of $3. 2 million, which was increased to almost $4 million following the

award of attorney fees. The Fire District and AAIC subsequently sued Matson, alleging

that   he   was negligent   in ( 1)   failing   to properly   evaluate   the case   for   settlement purposes,
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


 2) mishandling various pre -trial matters, and ( 3) failing to object to improper statements

in closing argument and failing to preserve for appeal the ability to challenge these

statements. The trial court dismissed AAIC' s claims based on its ruling that AAIC had

no standing to sue because it was not Matson' s client, and later dismissed the Fire

District' s negligence claims based on its ruling that Matson could not be liable for his

judgment decisions.


        Initially, we hold that under Stewart Title Guaranty Co. v. Sterling Savings Bank,

178 Wn.2d 561, 569 -70, 311 P. 3d 1 ( 2013),      the trial court correctly ruled that AAIC did

not have standing to sue Matson because his representation of the Fire District was not

intended for AAIC' s benefit. Therefore, we affirm the trial court' s dismissal of AAIC' s

claims. With regard to the Fire District' s legal negligence claims, all of the conduct at

issue involved the exercise of Matson' s professional judgment. We apply the " attorney

judgment rule" to hold that ( 1) the Fire District could avoid summary judgment only if it

came forward with sufficient evidence to show that Matson' s judgment decisions were

not within the range of reasonable alternatives from the perspective of a reasonable,

careful and prudent attorney in Washington or that decisions themselves resulted from

negligent conduct; and ( 2) the opinions of the Fire District' s experts created questions of


fact regarding most of its allegations. Accordingly, we affirm the trial court' s grant of

summary judgment dismissal of AAIC' s claims, but we reverse the trial court' s grant of

summary judgment in favor of Matson on all the Fire District' s claims except for the

failure to object to the improper closing argument and the failure to file an appropriate

motion   in limine regarding the   subject of   the improper   argument.
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


                                               FACTS


Underlying Lawsuit

        In February 2005, Sue Collins, Valerie Larwick, Kristy Mason, and Helen Hayden sued

their supervisor ( James) and employer (Fire District) for gender discrimination and sexual

harassment in violation of the Washington Law Against Discrimination, chapter 49. 60 RCW,


and for related claims. Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 62 -63, 231

P. 3d 1211 ( 2010).


        James admitted to making sexually inappropriate and discriminatory comments while

supervising employees, but he also testified that the plaintiffs had not told him that his remarks

were inappropriate. Collins, 155 Wn. App. at 67. From the Fire District' s perspective, James' s

inappropriate comments and actions were part of ongoing banter between James and Collins,

which Collins had initiated and encouraged. The Fire District disputed that James acted


inappropriately with regard to the other plaintiffs and contended that they joined the lawsuit at

Collins' s urging.

Matson Case Evaluation and Mediation


        In April 2005, AAIC retained Matson to defend its insureds ( Fire District and James) in


the Collins litigation. Apparently, there were lengthy delays in the discovery process. The

plaintiffs did not depose James until February 8, 2007.

        On February 26, 2007, Matson provided to AAIC a written evaluation of the plaintiffs'

cases in preparation for a mediation. He valued each of the plaintiffs' claims based on past


medical expenses, future medical expenses, back pay, front pay, prejudgment interest, general

damages, and attorney fees. He also assigned a probability of prevailing for each plaintiff. Then

Matson calculated a settlement value for each plaintiff based on the potential recoverable


                                                   3
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



damages and the probability of prevailing. Matson evaluated the combined settlement value of
                                              1
the   plaintiffs'   claims at $   370, 000.       However, he warned that his approach was conservative, and


that potentially recoverable damages could be higher at trial and the settlement values of each
case could be as much as 50 percent higher. Matson also advised that exposure to adverse


prevailing party attorney fees was a significant issue and could drive the settlement value of the

case. Finally, Matson advised that the plaintiffs also could recover an amount that represents

their increased income tax exposure.


          On March 2, Matson provided a detailed pre- mediation statement to the mediator.


Matson explained the facts from the plaintiffs' and defendants' perspectives and set forth his


analysis regarding the strengths and weaknesses of each of the plaintiffs' claims.

          On the eve of mediation, plaintiffs increased their settlement demand from $6. 6 million


to approximately $8. 5 million. Consistent with Matson' s evaluation of the case, AAIC' s

representative had $400, 000 in settlement authority at the mediation. According to AAIC' s

representative,      the   mediator   indicated that from her         perspective, $    1. 8 million possibly would be a

reasonable demand, but not $ 8 million, and that the average settlement value was approximately

    85, 000 per plaintiff. The mediator spoke to the plaintiffs but reported back that their demands

remained firm. After a full day of mediation, AAIC decided not make a settlement offer in any

amount. The AAIC representative stated at mediation that " if the plaintiffs want these kind of

numbers a     jury   is going to have to          give   it to them." Clerk' s Papers ( CP) at 546.




1
    Matson   valued    Collins'   s claims at $     157, 000, her prospect of prevailing at 35 percent, and the
settlement value of        her   claims at $ 55,    000. Matson       valued   Mason'   s claims at $   130, 000, her
prospect of prevailing at 60 percent, and her settlement value at $ 78, 000. Matson valued
Hayden' s claims at $249, 000, her prospect of prevailing at 65 percent, and her settlement value
at $ 162, 000. Matson valued Larwick' s claims at $ 205, 000, her prospect of recovery between 35-

60 percent, and her settlement value at $ 75, 000.
                                                                  4
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


         Matson did not file any dispositive motions or a motion to bifurcate the cases. Matson

also did not make an offer ofjudgment.

Trial and Appeal


         The case proceeded to trial. The jury returned a verdict in favor of all four plaintiffs,

awarding them substantial judgments that totaled more than $3. 2 million. Collins, 155 Wn. App.

at 73 -74. The trial court also awarded the plaintiffs more than $750, 000 in attorney fees and

costs.   Collins, 155 Wn. App. at 77 -80.

         The Fire District moved for a new trial, arguing that during closing arguments plaintiffs'

counsel deliberately interjected evidence of liability insurance and improperly encouraged the

jury to award punitive damages to send a message to the Fire District. Collins, 155 Wn. App. at
                                                                                                     without objection, [ the
74, 93 - 94. The trial    court   denied the        motion,   ruling that "[ t] aken together


comment]      is   not so prejudicial   to   warrant      the granting   of   a   new   trial."   Collins, 155 Wn. App. at

95 ( second alteration in original).

         On appeal, we affirmed the trial court' s denial of the Fire District' s motion for a new trial


in a published decision. Collins, 155 Wn. App.at 105                          With regard to the closing argument

issue,   we   held that "[ a] lthough such remarks were improper, we agree with the trial court that


they were not so prejudicial that a timely instruction could not have cured any prejudicial
         2
effect. "     Collins, 155 Wn.    App.       at   95.   This court also affirmed the trial court' s attorney fees



2 The Fire District also sought remittitur, arguing that the jury' s damages award was excessive
and that justice had not been done and substantial evidence failed to support the plaintiffs'
awards for economic damages. Collins, 155 Wn. App. at 74. The trial court granted the motion
forremitter in part by reducing Larwick' s damages. Collins, 155 Wn. App. at 75. On cross

appeal, we reversed the trial court' s partial grant of the Fire District' s motion to remit and
remanded to the trial court to reinstate the jury verdict and damages award. Collins, 155 Wn.
App. at 87 -93, 105.

                                                                 5
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


award and awarded $      116, 650.69 in attorney fees and costs on appeal to Collins and Larwick.

Collins, 155 Wn. App. at 105.

        The supplemental judgment, for which AAIC indemnified its insureds, totaled more than


 4. 8 million (not including interest).

Allegation ofLegal Negligence

        AAIC and the Fire District sued Matson, alleging that he was negligent in failing to

properly evaluate the case for settlement purposes, in mishandling various pre -trial matters, and

in failing to object to allegedly improper closing arguments. The trial court dismissed AAIC

from the lawsuit for lack of standing because AAIC was not Matson' s client. The trial court

certified its order under CR 54( b) to facilitate immediate appellate review, and AAIC appealed.


        Thereafter, the trial court dismissed the Fire District' s negligence claims against Matson


on summary judgment, holding as a matter of law that Matson could not be liable for his

judgment decisions. The Fire District appealed. We consolidated both appeals.


                                                   ANALYSIS


           STANDARD OF REVIEW


           We review a trial court' s order granting summary judgment de novo. Loeffelholz v.

Univ. of Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012). " We review the evidence in the light


most favorable to the nonmoving party and draw all reasonable inferences in that party' s favor."

Lakey   v.   Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P. 3d 860 ( 2013).           Summary

judgment is appropriate where there is no genuine issue of material fact and the moving party is

entitled   to judgment   as a matter of   law. Loeffelholz, 175 Wn.2d      at   271. " A genuine issue of


material fact exists where reasonable minds could differ on the facts controlling the outcome of

the litigation." Ranger Ins. Co.    v.    Pierce   County,   164 Wn.2d 545, 552, 192 P. 3d 886 ( 2008).     If


                                                        6
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


reasonable minds can reach only one conclusion on an issue of fact, that issue may be

determined     on   summary judgment. M. Mortenson Co.
                                       A.                            v.   Timberline Software     Corp., 140

Wn.2d 568, 579, 998 P. 2d 305 ( 2000).


        Under CR 56, a defendant is entitled to summary judgment if ( the defendant shows the
                                                                     1)

absence of evidence to support the plaintiff' s case and ( 2) the plaintiff fails to come forward with

evidence    creating   a genuine    issue   of fact on an element essential to the plaintiff' s case.     Young v.

Key   Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989).              To avoid summary

judgment in a negligence case, the plaintiff must show a genuine issue of material fact on each

element of negligence —         duty, breach, causation and damage. Martini v. Post, 178 Wn. App.

153, 164, 313 P. 3d 473 ( 2013).

B.       AAIC' s STANDING TO SUE


         The parties agree that even though AAIC retained and paid Matson, AAIC was not


Matson' s client. Matson' s only client was the Fire District. The trial court dismissed AAIC' s

legal negligence claim on this basis. AAIC argues that it does have standing to sue Matson

under the facts of this case. We disagree based on our Supreme Court' s decision in Stewart


Title, 178 Wn.2d at 569 -70.


           In Trask   v.   Butler, 123 Wn.2d 835, 842 -43, 872 P. 2d 1080 ( 1994), our Supreme Court


held that the threshold question for a nonclient' s ability to sue an attorney for legal negligence is
                                                                                            3
whether     the attorney' s    representation was    intended to benefit the   nonclient.       In Stewart Title,


our Supreme Court applied this rule in the insurance defense context, holding that a title insurer



3
  In Trask, our Supreme Court adopted a six -factor test to determine whether an attorney owes a
duty of care to a nonclient third party. 123 Wn.2d at 842 -43. Whether the representation was
intended to benefit the nonclient is the first factor and primary inquiry. Trask, 123 Wn.2d at
842 -43.
                                                           7
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



that hired an attorney to defend its insured was not an intended beneficiary of the attorney' s

representation.   178 Wn.2d at 563, 569 -70. The court held that the alignment of interests


between the insurer and the insured during the representation and the insured' s attorney' s duty to

keep the insurer informed of the progress of the litigation were insufficient to establish that the

insurer was an intended beneficiary of the representation and, therefore, the attorney did not owe

a duty of care to the insurer. Stewart Title, 178 Wn.2d at 567 -70.

        AAIC argues that Stewart Title does not impose a rule that applies in all insurance


defense situations and that the Trask intended beneficiary factor must be analyzed on a case -by-

case basis. AAIC contends that the facts here support a finding that AAIC was an intended

beneficiary of Matson' s representation. However, the same tripartite relationship that existed

between the parties in Stewart Title is present here and AAIC' s arguments are very similar to

those rejected   by   our   Supreme Court in Stewart Title. Our Supreme Court gave no indication in


Stewart Title that there could be circumstances under which the representation of an attorney

retained to represent an insured would be for the benefit of the insurer. Accordingly, we are

constrained to hold that Stewart Title controls and that AMC was not theintended beneficiary of

Matson' s representation. We hold that that AAIC lacks standing to maintain its legal negligence

claim against Matson and affirm the trial court' s grant of summary judgment on this issue.

C.      PRINCIPLES OF LEGAL NEGLIGENCE


        The trial court granted summary judgment dismissal of the Fire District' s legal

negligence suit against Matson based on the doctrine ofjudgmental immunity. The Fire District

argues that the trial court erred because questions of fact exist regarding Matson' s negligence.

We agree with the Fire District regarding most of its negligence claims.



                                                     8
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



         1.       Legal Negligence Elements


         To establish a claim of legal negligence, the plaintiff must prove four elements:


              1) The existence of an attorney -client relationship which gives rise to a duty of
         care on     the   part of    the attorney to the client; ( 2)       an act or omission by the attorney
         in breach         of   the   duty    of   care; (   3)    damage to the    client;   and (   4)   proximate


         causation between the attorney' s breach of the duty and the damage incurred.

Hizey   v.    Carpenter, 119 Wn.2d 251, 260 -61, 830 P. 2d 646 ( 1992). "                 To comply with the duty of

care, an attorney must exercise the degree of care, skill, diligence, and knowledge commonly

possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law" in

the state of Washington. Hizey, 119 Wn.2d at 261.

         In the analysis of any legal negligence claim it is important to understand that an attorney

is not a guarantor of success and is not responsible for a " bad result" unless the result was


proximately caused by a breach of the attorney' s duty of care. See McLaughlin v. Cooke, 112

Wn.2d 829, 839, 774 P. 2d 1171 ( 1989) ( regarding malpractice of a medical professional).


Consequently, the ultimate result of a case generally is irrelevant in evaluating whether an

attorney' s conduct breached the duty of care.

         Here, an attorney- client relationship existed between Matson and the Fire District that

created a duty of care and the jury verdict damaged the Fire District. The issues in this case are

whether Matson breached that duty and whether any breach was the proximate cause of the

damage to the Fire District.


             2.   Breach    of   Duty —Attorney Judgment Rule

             The Fire District' s legal negligence claims all involve Matson' s exercise of professional


judgment: settlement evaluation, pre -trial case strategy decisions, and whether to object at trial.

Matson        argues -   and    the trial   court agreed —        that an attorney generally is immune from liability


                                                                     9
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



for such judgment decisions. Although we decline to apply a rule of immunity, as discussed

below we adopt an " attorney judgment rule" for determining when a judgment decision breaches

an attorney' s duty of care.

          Other jurisdictions have recognized a " judgmental immunity" rule in various forms. 4

RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 31: 8,                                     at   421 -22 ( 2008);   see



Sun    Valley   Potatoes, Inc. v. Rosholt, Robertson & Tucker, 133 Idaho 1, 4 & n. 1, 981 P. 2d 236


 1999).      This rule dictates that lawyers do not breach their duty to clients as a matter of law when

they make informed, good -faith tactical decisions. See, e. g., Woodruff v. Tomlin, 616 F. 2d 924,

930 ( 6th Cir. 1980); Paul           v.   Smith, Gambrell &          Russell, 267 Ga. App. 107, 108 -09, 599 S. E.2d

206 ( 2004);     Sun Valley Potatoes, 133 Idaho at 4 -5; Clary v. Lite Machs. Corp., 850 N.E.2d 423,

431 - 32 ( Ind. Ct.     App.      2006); McIntire v. Lee, 149 N.H. 160, 168 -69, 816 A.2d 993 ( 2003);


Rorrer    v.   Cooke, 313 N.C. 338, 358, 329 S. E. 2d 355 ( 1985). The label " ` judgmental                         immunity'

  is something of a misnomer because it is not a true immunity rule. Sun Valley Potatoes, 133

Idaho   at   5; McIntire, 149 N.H.          at   169. "   Rather than being a rule which grants some type of

 immunity'       to   attorneys,    it appears to be nothing          more   than a   recognition          if anattorney' s

actions could under no circumstances be held to be negligent, then a court may rule as a matter

of   law that there is       no   liability." Sun Valley Potatoes, 133 Idaho at 5.

          Washington courts never have expressly adopted the judgmental immunity rule, but they

have   applied similar principles.            In Cook, Flanagan &            Berst v. Clausing, our Supreme Court

addressed an error of judgment              jury    instruction,     which stated, "   An attorney is not liable for a

mere error of judgment if he acts in good faith and in an honest belief that his acts and advice are


well   founded        and   in the best interest    of    his   client."   73 Wn.2d 393, 394, 438 P. 2d 865 ( 1968)


 internal      quotation marks omitted).           The court did not disagree with this language, but held that

                                                                     10
No. 42864 -4 -II, consolidated with No. 43970 -141



the instruction was erroneous because it did not also provide that the error of judgment " must

                                    4
itself fall   short of negligence. "        Cook, 73 Wn.2d at 394.


            The court in Cook did not specifically address the standard for determining when an error

ofjudgment involves negligence. However, the court stated that the following instruction " in

essence" was correct:




             A]n attorney is not to be held liable as for malpractice because of his choosing
            one of two or more methods of solution of a legal problem when the choosing is
            the exercise of honest judgment on his part, and the method so chosen is one
            recognized and approved by reasonably skilled attorneys practicing in the
            community as a proper method in the particular case, though it might not meet
            with    the   unanimous approval of such attorneys.             It is enough if the method chosen
            has the approval of at least a respectable minority of such attorneys who
            recognize it as a proper method.


Cook, 73 Wn.2d at 396. The court stated that the instruction was " incomplete" because it


failed to incorporate the necessary standard for the performance of professional services.

Cook, 73 Wn.2d at 396. In other words, a court must evaluate the exercise of judgment


from the perspective of a reasonable, careful and prudent attorney in Washington. See

Cook, 73 Wn.2d at 395 -96.


            In Halvorsen      v.   Ferguson, Division One      of   this   court stated, "   In general, mere errors in


judgment       or   in trial tactics do   not subject an   attorney to     liability   for legal   malpractice."   46 Wn.


App.       708, 717, 735 P. 2d 675 ( 1986) ( citing Cook, 73 Wn.2d               at   394). The    court noted   that "[ t] his



rule has found virtually universal acceptance when the error involves an uncertain, unsettled, or



4 This rule has been applied similarly in other jurisdictions. See Sun Valley Potatoes, 133 Idaho
at   5("An attorney is still `bound to exercise a reasonable degree of skill and care in all his
professional undertakings.' " (  quoting Woodruff, 616 F.2d at 930)); Colucci v. Rosen, Goldberg,
Slavet, Levenson & Wekstein, PC, 25 Mass. App. Ct. 107, 111, 515 N.E.2d 891 ( 1987) ( no
liability for imperfect judgment or mistake if lawyer acted " ` to the best of his skill and
knowledge' ", but only if he also acted " ` with a proper degree of attention[ and] with reasonable
care' " ( quoting Stevens v. Walker & Dexter, 55 Ill. 151, 153 ( 1870))).

                                                              11
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



debatable     proposition of   law."    Halvorsen, 46 Wn. App. at 717. Accordingly, the court

concluded that a difference of opinion among experts regarding litigation strategy was not

enough      to impose   liability   on an   attorney. Halvorsen, 46 Wn.       App.     at   718. But like the Supreme


Court in Cook, the court also indicated that an attorney is protected from liability only if his or

her   exercise of judgment      is free from    negligence, "   An attorney' s immunity from judgmental

liability is conditioned upon reasonable research undertaken to ascertain relevant legal principles

and   to   make an   informed judgment."        Halvorsen, 46 Wn. App. at 718.

           We read Cook and Halvorsen as establishing an " attorney judgment rule" for determining

when an attorney' s error in professional judgment breaches his or her duty of care. Under this

rule, an attorney cannot be liable for making an allegedly erroneous decision involving honest,

good faith judgment if ( that decision was within the range of reasonable alternatives from the
                        1)


perspective of a reasonable, careful and prudent attorney in Washington; and ( 2) in making that

judgment decision the attorney          exercised reasonable care.        Our Supreme Court' s decision in


Cook supports this rule because the court approved a jury instruction stating that an attorney

cannot be held liable for malpractice if there is a difference of opinion among reasonably skilled

attorneys regarding the attorney' s course of action as long as the instruction incorporated the

necessary standard of care. 73 Wn.2d at 396. Legal negligence commentators also support this

rule: "    The exercise ofjudgment often contemplates having to choose among other reasonable

alternatives.    Thus, picking the wrong         alternative   is   not negligence."    4 MALLEN, LEGAL


MALPRACTICE § 31: 8, at 420 ( footnote omitted).


            The attorney judgment rule is consistent with a similar error in judgment rule applied in

medical negligence cases. When a physician is " confronted with a choice among competing

therapeutic techniques or among medical diagnoses" the physician will not be liable for an error

                                                           12
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



ofjudgment if, in arriving at that judgment, he or she exercised reasonable care and skill within

the   applicable standard of care.            Watson v. Hockett, 107 Wn.2d 158, 164 -65, 727 P. 2d 669


 1986);   Fergen v. Sestero, 174 Wn. App. 393, 397, 298 P. 3d 782, review granted, 178 Wn.2d

1001 ( 2013).


          3.         Determining Breach of Duty on Summary Judgment

          Matson argues that whether an attorney' s error in judgment constitutes a breach of duty is

a question of law for the court. We disagree.


          The attorney judgment rule addresses whether an attorney' s error in judgment has

breached the duty of care to his or her client. In a negligence action, whether a defendant has

breached the duty of care generally is a question of fact. Hertog v. City ofSeattle, 138 Wn.2d

265, 275, 979 P. 2d 400 ( 1999);             Bowers v. Marzano, 170 Wn. App. 498, 506, 290 P.3d 134

 2012).    The attorney judgment rule may require the plaintiff to produce additional evidence

regarding breach of duty not required when the attorney' s error does not involve a judgment
               5
decision.           But no Washington case supports the proposition that an attorney cannot be liable for

an error of judgment as a matter of law even when the plaintiff comes forward with evidence


sufficient to create factual issues on breach of duty within the parameters of the attorney
                                                                                                                          6
judgment           rule.   Whether   an   attorney has breached   a   duty   of care remains a question   for the jury.




5 Further, as in any attorney negligence case, a plaintiff generally must present expert testimony
that the attorney breached the standard of care. See Geer v. Tonnon, 137 Wn. App. 838, 851,
155 P. 3d 163 ( 2007).


6 An exception is when an attorney is charged with an error regarding a legal question. In this
situation, whether the attorney erred in interpreting or applying the law is a legal issue reserved
for the court. Halvorsen, 46 Wn. App. at 712 -13, 18 ( rejecting a malpractice claim as a matter of
law, for an attorney' s failure to present or emphasize a certain theory of apportionment of
community property in a dissolution case).
                                                             13
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



        Matson is correct that under certain circumstances, whether an error in judgment


constitutes a breach of duty can be decided as a matter of law. But this is no different than in any

other negligence case, where a defendant can obtain summary judgment on the issue of breach of

duty if reasonable minds could reach only one conclusion. Hertog, 138 Wn.2d at 275; Bowers,

170 Wn. App. at 506.

        Under the attorney judgment rule a plaintiff can avoid summary judgment on breach of

duty for an error in judgment in one of two ways. First, the plaintiff can show that the attorney' s

exercise ofjudgment was not within the range of reasonable choices from the perspective of a


reasonable, careful and prudent attorney in Washington. Merely providing an expert opinion that

the judgment decision was erroneous or that the attorney should have made a different decision

is not enough; the expert must do more than simply disagree with the attorney' s decision.

Halvorsen, 46 Wn. App. at 715 -16, 718 ( expert statements that they would have conducted

litigation   differently   cannot as a matter of   law   support a   legal   negligence action).   The plaintiff


must submit evidence that no reasonable Washington attorney would have made the same

decision as the defendant attorney. See Cook, , Wii.2d at 396 ( attorney not liable for a
                                              73

judgment decision,     even    though it   might not meet with unanimous approval).          If there is a


genuine issue as to whether the attorney' s decision was within the range of reasonable choices,

the jury must be allowed to decide the issue.

        Second, the plaintiff can show that the attorney breached the standard of care in making

the judgment decision. For instance, as the court stated in Halvorsen, to avoid liability under the

attorney judgment rule the attorney' s judgment must be an informed one. 46 Wn. App. at 718.

In other words, even if the decision itself was within the reasonable range of choices, an attorney



                                                          14
No. 42864 -4 -II, consolidated with No. 43970 -1 - II



can be liable if he or she was negligent based on how that decision was made. Again, if


sufficient evidence of such negligence exists, the jury must decide the issue.

          4.    Proximate Cause


          Causation in          a   legal   negligence claim   focuses   on " cause   in fact ", the " ` but for' "


consequences of an attorney' s breach of duty. Hippie v. McFadden, 161 Wn. App. 550, 562, 255

P. 3d 730 ( 2011) ( quoting Geer               v.   Tonnon, 137 Wn.   App. 838, 844,      155 P. 3d 163 ( 2007)). A


plaintiff must prove that but for the attorney' s negligence, he or she would have prevailed or

obtained a better result in the underlying litigation. Schmidt v. Coogan, 162 Wn.2d 488, 492,

173 P. 3d 273 ( 2007);              Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864, 147 P. 3d 600

 2006).    Generally, the but for aspect of proximate cause is decided by the trier of fact. Smith,

135 Wn. App. at 864. However, proximate cause can be determined as a matter of law if

reasonable minds could not differ. Smith, 135 Wn. App. at 864.

          When an attorney makes an error that affects the outcome of the underlying case,

proximate cause can be determined in a legal negligence case by retrying (or trying for the first

time) the underlying case While omitting the alleged error. See Daugert v. Pappas, 104 Wn.2d

254, 257 -58, 704 P. 2d 600 ( 1985).                 The result of the second trial is then compared to the

outcome of the underlying case. See Daugert, 104 Wn.2d at 257 -58. This is referred to as a "

 trial within   a   trial.' "       Kommavongsa v. Haskell, 149 Wn.2d 288, 300, 67 P. 3d 1068 ( 2003)


 quoting   Picadilly, Inc.           v.   Raikos, 582 N.E.2d 338, 344 ( Ind. 1991)).        However, in order to avoid


summary judgment and reach this stage, the plaintiff must produce evidence that the error in

judgment did in fact affect the outcome.


          Proximate cause may be difficult to prove for some of the judgment errors the Fire

District alleges. But proximate cause issues were never before the trial court. AAIC and the Fire


                                                                 15
No. 42864 -4 -II, consolidated with No. 43970 -1 - II


District filed a summary judgment motion on the applicability of Matson' s judgmental immunity

affirmative defense. In its response, Matson asked for dismissal as a matter of law on


judgmental immunity, and later renoted the issue for trial court consideration. Matson never

generally moved for summary judgment on the Fire District' s negligence claim or specifically

challenged the existence of proximate cause. Accordingly, we will not address proximate cause

in this appeal.


D.      MATSON' S ALLEGED JUDGMENT ERRORS


        The Fire District argues that questions of fact exist as to whether Matson was negligent in


providing an inadequate settlement evaluation, in mishandling pre -trial litigation matters, and in

failing to object to improper closing arguments and to preserve the issue for appeal.

        1.      Settlement Evaluation


        Before mediation Matson provided his opinion that the settlement value of the four


claims against the Fire District was approximately $370, 000, which reflected a gross value of

 741, 000 ( including attorney fees) discounted by various percentages for the different plaintiffs

based on     liability issues.   The Fire District argues that Matson   was negligent    his


evaluation was inadequate and he underestimated the value of the case. The Fire District also


argues that the erroneous evaluation resulted from Matson' s negligence. We agree that the Fire


District has presented sufficient evidence under both aspects of the attorney judgment rule to

create a question of fact regarding whether Matson breached his duty of care in developing his

settlement evaluation.




        An attorney' s opinion regarding the value of a particular case obviously involves the

exercise of professional judgment. Determining case value necessarily results from a subjective

assessment of a variety of case -specific liability and damages factors.

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No. 42864 -4 -II, consolidated with No. 43970 -1 - II


         The settlement process concerns the prospects of success and the value of the
         recovery or exposure. These considerations can be evaluated objectively but also
         involve subjective factors. These include the forum in which a case will be tried,
         the attitude of the trial judge, the likely nature of a jury and a variety of
         considerations that usually cannot be objectively tested, except by hindsight. For

         that reason, an informed judgmental decision should not be second -guessed.

4 MALLEN, LEGAL MALPRACTICE § 31: 42,                 at   638.   Accordingly, the attorney judgment rule

applies, and the Fire District had the burden to come forward with evidence that Matson' s

settlement evaluation either ( 1) was not within the range of reasonable alternatives from the


perspective of a reasonable, careful and prudent attorney in Washington or (2) resulted from

Matson' s negligent conduct.


         The Fire District       submitted similar opinions        from three   experts —Claire   Cordon, Anne


Bremner    and    Robert Gould —that Matson' s evaluation was erroneous in that he underestimated


the   value of   the   plaintiffs'   claims.   Further, all three expressly stated that Matson' s settlement

evaluation breached an attorney' s standard of care.

         None of the experts specifically stated that the amount of Matson' s evaluation was not

within the range of reasonable alternatives under the facts of this case or that no reasonable


attorney would have made the same settlement evaluation. In fact, none of them gave an opinion

regarding what they believed was the .correct settlement range. Under Halvorsen, the mere

statements of experts that a judgment decision is erroneous or that they would have evaluated the

case differently are not enough to maintain an attorney negligence claim. 46 Wn. App. at 718.

However, it can be inferred that the experts believed that no reasonably prudent attorney would

have agreed with Matson' s evaluation based on their opinions that Matson breached the standard



7 Gould' s opinions on this subject were set forth in an unsigned letter that was an exhibit to his
deposition and was submitted in an attachment to an attorney' s declaration. Because Matson did
not object to the trial court' s consideration of this letter, we also consider it here. Gould did
provide a short declaration, but did not address this issue in that declaration.
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of care. When evaluating a summary judgment order the nonmoving party is entitled to all

reasonable inferences. Lakey, 176 Wn.2d at 922. Accordingly, we hold that the Fire District

came forward with sufficient evidence to show that Matson' s settlement evaluation was not


within the range of reasonable alternatives from the perspective of a reasonable, careful and


prudent attorney in Washington.

        In addition, the Fire District produced sufficient evidence to create a question of fact as to


whether Matson' s evaluation resulted from his failure to exercise reasonable care. Cordon,


Bremner, and Gould provided detailed opinions that Matson' s evaluation resulted from his


negligence in multiple respects: inexperience in handling discrimination cases, misunderstanding

of the applicable law, failure to understand that the Fire District would be found liable,


improperly assessing Collins' s behavior as a mitigating factor, and failing to consult prior jury

verdicts and other objective data in developing the evaluation. Using the words of the court in

Halvorsen, these opinions create questions of fact as to whether Matson' s evaluation was


 conditioned upon reasonable research undertaken to ascertain relevant legal principles and to


make   an   informed judgment."         46 Wn. App. at 718.

        Accordingly, we hold that summary judgment was not proper on the issue of whether

Matson' s settlement evaluation constituted a breach of his duty of care.

        2.     Pre -Trial Handling

        The Fire District argues that Matson was negligent in the handling of the case before trial

in multiple respects. In its appellate briefing, the Fire District references the following alleged

deficiencies: (   1) adopting a strategy that assumed the jury would view James' s conduct as light-

hearted banter    and   blamed Collins for James'           s conduct; (   2) failing to provide a settlement

evaluation earlier   in the   case; (   3)   failing to   pursue   early   settlement /
                                                                                      mediation; (   4) failing to make

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No. 42864 -4 -II, consolidated with No. 43970 -1 - I1


individual    settlement offers      to the different     plaintiffs; (   5) failing to consult with other attorneys

in his firm   who were more experienced, (              6) failing to arrange for a mock trial or consult with a

jury   consultant; ( 7)   failing   to file   a motion   to bifurcate; ( 8)   failing to file dispositive motions,

particularly   on   Collins'   s claim; and (    9)   failing to file   an offer of   judgment.$ We hold that the


Fire District has presented sufficient evidence under the attorney judgment rule to create

questions of fact regarding Matson' s negligence in the pre -trial handling of the case.

          All of Matson' s alleged deficiencies listed above related to pre -trial tactics and strategy

and involved the exercise of professional judgment. Accordingly, the attorney judgment rule

applies, and the Fire District had the burden to come forward with evidence that Matson' s

judgment decisions either ( 1) were not within the range of reasonable alternatives from the

perspective of a reasonable, careful and prudent attorney in Washington or (2) resulted from

Matson' s failure to exercise reasonable care.

          As with the settlement evaluation issue, the Fire District did not provide any expert

testimony that no reasonable attorney would have handled the case like Matson did in these

specific respects.     The     experts   only   generally asserted that                   pre trial strategy decisions
                                                                                              =

were negligent or breached the duty of care. The expert opinions on these issues are closer to

merely stating that Matson should have made different decisions or that the experts would have

made different decisions. Nevertheless, resolving all inferences in the Fire District' s favor, we

hold that the evidence is sufficient to create a question of fact regarding whether Matson' s

judgment decisions were not within the range of reasonable alternatives from the perspective of a

reasonable, careful and prudent attorney in Washington.

8
  The Fire District' s experts may have referenced other alleged deficiencies. However, because
they were not argued or mentioned in the Fire District' s appellate briefing we need not consider
them.
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No. 42864 -4 -II, consolidated with No. 43970 -1 - II



         In addition, the Fire District' s experts stated opinions that Matson' s alleged judgment


errors resulted     from his   negligence —        primarily, inexperience in handling discrimination cases

and misunderstanding the applicable law. These opinions are sufficient to create questions of

fact regarding whether Matson exercised informed judgment regarding pre -trial strategic

decisions.


         Accordingly, we hold that summary judgment was not proper on the issue of whether

Matson' s pre -trial judgment decisions constituted a breach of his duty of care.

         3.      Plaintiffs' Improper Closing Argument

         During closing argument in the Collins case, plaintiffs' counsel made the following
statements:




              The amount that' s being sought will not in any way reduce fire services, hurt
         the department. It' s not going to do anything that will hurt services in any way, or
         raise   taxes, do any       of   the bogeys that   might    be    mentioned. It will not happen. We
         know that.
              What you need to do, please, is put a value on their suffering that other
         departments  will look up and say, " We can' t do that." Put a value on what they

         have      experienced       and   compensate     them to      a   level that   says, "   If you do this,
         serious consequences             flow,   and we compensate people as           they   are   injured." And

         in so doing, help let the commissioners know the answer to the question they felt
         had to go to you all to be decided. And in so doing, also let ... [ human resources]
         departments know that there' s a better structure, there' s a better way to do this.

Collins, 155 Wn.      App.     at   72 -73 (   emphasis omitted) ( alteration     in   original).    Matson did not


object   to this   argument.    Collins, 155 Wn.        App.   at   73. The Fire District alleges that the argument


was improper9 and that Matson was negligent in failing to object, failing to file a motion in




9 The Fire District provides no explanation in this case as to why the argument was improper.
On appeal in the underlying case, the Fire District argued that the statement amounted to a
reference to insurance and urged the jury to send a message with its verdict. Collins, 155 Wn.
App. at 95 -97.
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No. 42864 - -II, consolidated with No. 43970 -1 - II
          4



limine regarding improper closing arguments, and failing to object after the fact to preserve the

issue for appeal.


          We hold that the Fire District did not present sufficient evidence under either part of the


attorney judgment rule to create questions of fact regarding Matson' s breach of duty in failing to

object and in failing to file an appropriate motion in limine. We hold that the Fire District

presented sufficient evidence under the attorney judgment rule to create a question of fact

regarding Matson' s breach of duty in failing to preserve the closing argument issue for appellate

review.



                a.        Failure To Object During Closing Argument

          Whether to object to an improper statement in closing argument involves the exercise of

the attorney'   s   judgment. " The decision of when or whether to object is a classic example of trial


tactics."    State   v.   Madison, 53 Wn.   App.    754, 763, 770 P. 2d 662 ( 1989).   Accordingly, the

attorney judgment rule applies and the Fire District had the burden to come forward with

evidence that Matson' s failure to object either ( 1) was not within the range of reasonable


alternatives from the perspective of a reasonable, careful and prudent attorney in Washington or

 2) resulted from Matson' s failure to exercise reasonable care. We note that " allegations of


negligence pertaining to trial tactics and procedure[ are] matters frequently difficult to prove."

Walker v. Bangs, 92 Wn.2d 854, 858, 601 P. 2d 1279 ( 1979).


            Although plaintiffs' counsel' s comments may have been improper, they were fairly

vague. Counsel did not expressly mention " insurance" or explicitly ask the jury to punish the

defendants. Collins, 155 Wn.          App.   at   72 -73. Matson explained that although he interpreted


plaintiffs' closing as possibly objectionable in two respects, he did not object and did not want a

curative instruction because he did not want to spotlight the issues in front of the jury. Counsel

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No. 42864 -4 -II, consolidated with No. 43970 -1 - II



legitimately may decide not to object to avoid the risk of emphasizing an objectionable

statement. See In re Pers. Restraint ofDavis, 152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004).

        Gould opined that Matson should have objected during closing argument and that in his

opinion    Matson'   s silence was " stupid,    if not   negligent."   CP at 849. But Gould did not expressly

state that Matson' s failure to object during closing argument breached the standard of care.

Moreover, even Gould acknowledged Matson' s concern about objecting in the presence of the

jury. And Bremner noted that Matson had " a difficult choice" about whether to object when

opposing counsel made an improper argument. CP at 808. Neither expert stated that no

reasonable attorney would have decided not to object during closing argument under these

circumstances. Further, the Fire District does not argue, and its experts do not state, that the


decision to not object itself resulted from Matson' s negligence. Accordingly, we hold that the

Fire District failed to raise a question of fact under either part of the attorney judgment rule that

Matson' s failure to object during closing argument constituted a breach of duty. Summary

judgment was appropriate on this issue.


              b.      Failure To File Motion in Limine


          The Fire District argues that although Matson may have been faced with a difficult

decision as to whether or not to object during closing argument, he never would have been in that

position if he had filed a motion in limine barring the plaintiffs' counsel from making improper

arguments ( or raised     the issue   right   before closing     argument).   The Fire District argues that


Matson was negligent in failing to file such a motion in limine. Because the decision whether to

file a motion in limine involved the exercise of Matson' s judgment, the attorney judgment rule

applies.




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No. 42864 -4 -II, consolidated with No. 43970 -1 - II



        Bremner was the only expert that opined about a motion in limine. Although Bremner

did not render an opinion that no reasonable attorney would have failed to file the motion, she

stated that the failure to file a motion in limine violated the standard of care. However, the trial


court actually granted motions in limine excluding from the jury' s consideration insurance, lack

of insurance, or any direct or implied argument of any adverse financial effect of a judgment.

Because Bremner' s opinion was based on an incorrect assumption not supported by the record —

that there   was no order     in limine that   addressed   the   subject of   the improper closing   argument —it


cannot create a question of fact on Matson' s breach of duty.

               c.   Failure To Preserve Issue for Appeal


        The Fire District argues that even if Matson did not want to object in front of the jury, he

should have preserved the issue for review by objecting later or moving for a mistrial outside the

presence of the jury. Gould stated that Matson breached the standard of care in failing to

preserve obvious error for appellate review. He indicated that any reasonable attorney would

have objected and requested a curative instruction. Gould also presented an opinion tailored to


the attorney judgment rule, stating that " no reasonable Washington attorney would have done

nothing to   protect   the   client   from the improper ...      closing   arguments."   CP at 1080 ( emphasis in


original).   We hold that this opinion is sufficient to create a question of fact under the attorney

judgment rule that Matson' s failure to do more to preserve the issue for appeal was not within


the range of reasonable alternatives from the perspective of a reasonable, careful and prudent


attorney in Washington.1°



10 On remand the Fire District will have to show that Matson' s failure to properly preserve the
closing argument issue for appeal proximately caused harm. However, as noted above we do not
address proximate cause because it was not addressed below.
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No. 42864 -4 -II, consolidated with No. 43970 -1 - II



        We affirm the trial court' s grant of summary judgment on Matson' s failure to object to

the improper closing argument and failure to file a motion in limine addressing the subject of the

improper argument, but reverse on Matson' s alleged failure to preserve the closing argument

issue for appeal.


        In conclusion, we affirm the trial court' s grant of summary judgment in favor of Matson

on AAIC' s claims, but reverse the grant of summary judgment on all the Fire District' s claims

except for the failure to object to the improper closing argument and the failure to file an

appropriate motion in limine on the subject of the closing argument. We remand for further

proceedings consistent with this position.




We concur:




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