NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12287

KIRIBATI SEAFOOD COMPANY, LLC, & another1 vs. DECHERT LLP.

Suffolk. April 6, 2017. - October 11, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.2

Attorney at Law, Malpractice, Negligence. Negligence, Attorney at law, Proximate cause. Proximate Cause. Damages, Mitigation.

Civil action commenced in the Superior Court Department on July 1, 2013.

The case was heard by Kenneth W. Salinger, J., on motions for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Megan C. Deluhery (John R. Neeleman, of Washington, also present) for Kiribati Seafood Company, LLC. Denis M. King (Richard M. Zielinski also present) for the defendant.

1 Olympic Packer, LLC. 2 Justice Hines participated in the deliberation on this case prior to her retirement. 2

GANTS, C.J. The issue on appeal is whether, in a legal

malpractice action, a court's error of law constitutes a

superseding cause that bars recovery to the plaintiff client

even where the defendant attorney was negligent for failing to

prevent or mitigate the legal error. The plaintiff, Kiribati

Seafood Company, LLC (Kiribati), brought a legal malpractice

claim against its former law firm, Dechert LLP (Dechert).

Kiribati alleged that Dechert negligently failed to provide a

French appellate court with the evidence the court deemed

necessary for Kiribati to prevail on a claim, which resulted in

the court's denial of the claim. A judge of the Superior Court

granted summary judgment to Dechert and denied partial summary

judgment to Kiribati. The judge determined that the French

appellate court committed an error of law in requiring this

evidence and that, even if Dechert were negligent in failing to

provide the evidence to the court, Kiribati could not recover

damages for Dechert's negligence because the court's legal error

was a superseding cause of the adverse decision. We conclude

that an error of law under these circumstances is a concurrent,

not a superseding, proximate cause and that the judge therefore

erred in granting summary judgment to Dechert and denying

partial summary judgment to Kiribati.

Background. Because this is an appeal from an allowance of

summary judgment, we set forth the undisputed material facts. 3

Kiribati purchased a fishing vessel known as the Madee (ship),

and chartered it to Olympic Packer, LLC, and Dojin Co., Ltd.,

for the purpose of fishing for tuna in the Pacific Ocean.3 After

sustaining damage to its rudder, the ship was placed in a dry

dock in the Autonomous Port of Papeete (port) in Tahiti to

undergo repairs. When the dry dock collapsed, the ship

sustained damages so severe that it was deemed a "constructive

total loss" by Kiribati's "port risk" insurer, Certain

Underwriters of Lloyd's of London (Lloyd's). Kiribati retained

two attorneys in the Paris office of the law firm Coudert

Brothers LLP (Coudert) to file a lawsuit for damages against the

port in the Commercial Court of Papeete (commercial court).

When these two attorneys left Coudert to join Dechert, Kiribati

continued to retain them and transferred the representation to

Dechert.

Lloyd's paid Kiribati $1,763,803.71 on its insurance claim

regarding the loss of the ship, which compensated Kiribati for

some, but not all, of its losses. As a result of its payment,

Lloyd's had a right of subrogation to recover that amount from

the port. In April, 2004, Lloyd's and Kiribati entered into a

written agreement jointly to prosecute Kiribati's litigation in

3 Kiribati Seafood Company, LLC, and Olympic Packer, LLC, are limited liability companies organized in the State of Washington. Dechert LLP is a law firm organized as a limited liability partnership that is registered in Pennsylvania but has offices around the world, including in Boston. 4

the commercial court, where Kiribati sought to recover its

losses that were not compensated by Lloyd's, and where Lloyd's

sought to recover through subrogation the amount it paid to

Kiribati. As part of the agreement, Lloyd's agreed to pay half

of the attorney's fees and costs associated with this

litigation.

The agreement between Kiribati and Lloyd's jointly to

prosecute the suit against the port did not end Kiribati's

financial disputes with Lloyd's. Kiribati contended that it was

paying substantially more than its fifty per cent share of the

legal fees in the litigation and that Lloyd's was failing to pay

its equal share. Kiribati also claimed that Lloyd's had failed

to pay it in full for the "sue and labor" and mitigation

expenses it was entitled to under its policy. To settle these

and other disputes, in December, 2004, Kiribati and Lloyd's

entered into a new agreement in which Kiribati released Lloyd's

from all outstanding claims, including its claims for unpaid

attorney's fees and "sue and labor" and mitigation expenses. In

return, Lloyd's assigned its subrogation claim to Kiribati.

In January, 2008, the commercial court issued a judgment in

favor of Kiribati and against the port. As part of the

judgment, the court found that the assignment of the subrogation

claim was "signed abroad" by "two foreign registered entities"

without any specific agreement that French law would apply, so 5

the validity of the assignment could not be determined under

French law. The court concluded that it was "valid" under

"foreign law," and therefore awarded Kiribati the full amount of

the subrogation claim assigned to it by Lloyd's -- approximately

$1.76 million. The port appealed from the decision to the Court

of Appeals of Papeete (court of appeals).

Tahitian courts are part of the French legal system. A

judgment by the commercial court may be appealed from as of

right to the court of appeals, which will review the decision de

novo and consider new evidence offered by the parties to

supplement the record. A decision by the court of appeals is

appealable from as of right to the Cour de cassation in Paris,

which is the French Supreme Court, but that court will review

decisions only for errors of law.

In its first appellate decision, issued in April, 2010, the

court of appeals affirmed much of the judgment of the commercial

court, but it deferred decision regarding its enforcement of the

assignment of the subrogation claim. It did not challenge the

validity of the assignment under foreign law but noted that the

"enforceability" of the assignment in a French court of law

against a French defendant must be determined according to

French law, which forbids "double compensation of the same

damages." Where the port claimed that Kiribati was seeking "a

double compensation for the damages and accordingly an unjust 6

enrichment," the court of appeals decided to defer any decision

regarding this claim for compensation to allow Kiribati to prove

the amount paid in consideration for the assignment by showing

the "actual price of the transfer."

After the first appellate decision, a Dechert attorney,

Xavier Nyssen, advised Dennis Moran, an attorney in another law

firm who was acting essentially as Kiribati's general counsel,

that he needed evidence of the consideration paid by Kiribati

for the assignment to address the court of appeals's concern

about double compensation. Moran on two separate occasions

provided various documents to Dechert, including (1) a 2004

letter from Moran to Lloyd's counsel demanding payment of

Lloyd's equal share of Coudert's legal fees, with attached

payment records that demonstrated that Kiribati had paid far

more of the attorney's fees than did Lloyd's despite the

provision in the settlement agreement that payment of the fees

be shared equally; (2) the December, 2004, agreement between

Kiribati and Lloyd's that included a release by Kiribati of all

further claims on its Lloyd's policy; (3) correspondence

identifying the various claims against Lloyd's that Kiribati had

released; and (4) an unsworn written statement by a Lloyd's

representative that declared that "[t]he subrogation rights were

assigned for valuable consideration, the amount of which is

privileged." 7

In support of its brief, Dechert submitted to the court of

appeals as evidence only the 2004 letter from Moran, without any

of the supporting documentation regarding legal fees, and the

unsworn written statement by the Lloyd's representative, without

the policyholder's release or the correspondence identifying the

released claims. After the port in its response noted that

Kiribati had provided no proof of having paid attorney's fees

that Lloyd's was obligated to pay, another Kiribati attorney

(who was not associated with Dechert) caused Nyssen again to be

sent the documents that Moran had earlier provided and informed

Nyssen that he needed to submit the attorney's fee payment

records and the policyholder release in order to demonstrate the

payment of consideration for the assignment. Dechert did not

further supplement the record by providing these documents to

the court of appeals.

In May, 2011, the court of appeals in its final decision

reduced the amount of Kiribati's award by the amount of the

assigned subrogated claim because Kiribati had failed to meet

its burden to provide evidence of the "financial compensation"

it paid for the assignment, explaining that "double recovery for

the same damage must be avoided." The court specifically noted

that Kiribati had failed to provide any evidence that it had

paid attorney's fees that Lloyd's was obligated to pay, or that

it had released Lloyd's from legal claims that Kiribati 8

otherwise could have brought in a court of law.

In June, 2011, Kiribati was in receivership, so Nyssen sent

an electronic mail message to its receiver informing him that

the court of appeals decision could be challenged before the

Cour de cassation, but only as to errors of law. Nyssen wrote,

"As for Kiribati's subrogation interest acquired from . . .

Lloyd's, there may be grounds to call into question its

decision, although we would need the opinion of a lawyer

registered with the Cour de cassation to take [a] position."

Nyssen wrote that he "would not recommend challenging the

decision" because of the cost and duration of the appeal, which

he estimated at one to two years, and because an appeal by

Kiribati may cause the defendants to challenge the entirety of

the court of appeals ruling, which might result in a suspension

of its enforcement. The receiver later filed in the

receivership action a motion for authorization to waive an

appeal in the Tahiti litigation, attaching to his declaration a

letter from an attorney for Kiribati stating that "Kiribati's

shareholders will follow Dechert's advice and not appeal the

Tahiti litigation outcome." The court approved the receiver's

request for authorization to waive the appeal.

In July, 2013, Kiribati commenced this action in the

Superior Court of Massachusetts against Dechert, alleging, among

other claims, that Dechert was professionally negligent in its 9

prosecution of the assigned subrogation claim because it failed

to present evidence the court of appeals had requested and that

Dechert had in its possession, resulting in a loss to Kiribati

of approximately $1.76 million.4 Dechert moved for summary

judgment as to all of the remaining claims; Kiribati cross-moved

for partial summary judgment on its legal malpractice claim.

In support of their motions, both parties submitted

affidavits from their respective chosen experts on issues of

French law. Dechert moved to strike the affidavit submitted by

Kiribati's expert, claiming that it failed to show that his

education, training, and experience qualifies him to provide

expert testimony on any aspect of French law. The motion judge

granted the motion, finding that Kiribati's expert had "never

practiced as a lawyer in France . . . and [did] not identif[y]

any other education, training, experience, or familiarity in or

with the topics he addresses in his expert reports." Kiribati

did not challenge the qualifications of Dechert's expert, a

practicing French lawyer, and the judge credited portions of the

affidavit he submitted in support of Dechert's motion regarding

the content of French law.

In granting Dechert's motion for summary judgment, the

judge noted that the content of foreign law is a question of law

to be decided by the court. He determined that the court of

4 None of Kiribati's other claims is at issue on appeal. 10

appeals had committed judicial error under French law in

disallowing recovery of the $1.76 million assigned subrogation

claim for lack of proof that it was not an impermissible double

recovery. The judge also determined that, regardless of whether

Dechert was negligent in its handling of the appeal and

regardless of whether the court's error of law was foreseeable,

Dechert could not be found liable because the error of law by

the court of appeals underlying the resulting adverse ruling was

"a superseding cause that breaks the chain of causation flowing

from [Dechert's alleged negligence]" and "that relieves Dechert

of any negligence in its representation of Kiribati before that

court."5 Kiribati appealed, and we transferred the case to this

court on our own motion.

Discussion. Our review of a motion judge's decision on

summary judgment is de novo, because we examine the same record

and decide the same questions of law. See Global NAPs, Inc. v.

Awiszus,

, 499 n.16 (2010); Leavitt v. Mizner,

(1989); Mass. R. Civ. P. 56 (c), as amended,

(2002).

The central issue in this case is the relationship between

5 In a separate order, the judge granted Dechert's motion for costs as the prevailing party, and awarded $76,130.13 to compensate Dechert for the cost of obtaining deposition transcripts and "accurate English translations of key documents in [the] case" and for its attorney's travel to three depositions. 11

attorney malpractice and judicial error, more specifically, the

circumstances under which an attorney should be relieved of

liability for professional negligence where the attorney's

negligent act or omission precedes judicial error.

Attorneys who enter into attorney-client relationships owe

their clients "an obligation to exercise a reasonable degree of

care and skill in the performance of [their] legal duties."

Global NAPs, Inc.,

, quoting Pongonis v. Saab,

(1985). "To prevail on a claim of

negligence by an attorney, a client must demonstrate that the

attorney failed to exercise reasonable care and skill in

handling the matter for which the attorney was retained . . . ;

that the client has incurred a loss; and that the attorney's

negligence is the proximate cause of the loss . . . ." Global

NAPs,

quoting Colucci v. Rosen, Goldberg, Slavet,

Levenson & Wekstein, P.C.,

, 111 (1985).

"Expert testimony is generally necessary to establish that an

attorney failed to meet the standard of care owed in the

particular circumstances." Global NAPs,

citing

But "such testimony is not essential where

'the claimed malpractice is so gross or obvious that laymen can

rely on their common knowledge to recognize or infer

negligence,' or where an attorney disobeys the lawful

instructions of his client and a loss ensues for which the 12

attorney is responsible." Global NAPs,

quoting

As to the element of proximate cause, a client must

demonstrate that it "probably would have obtained a better

result had the attorney exercised adequate skill and care."

Global NAPs, Inc.,

, quoting Fishman v. Brooks,

(1986). Generally, the question of what the

probable outcome would have been had the attorney acted

reasonably is determined by a "trial within a trial," in which a

new trier of fact decides both whether the attorney was

negligent and what the outcome of the litigation would have been

in the absence of negligence.

The new trier of

fact does not attempt subjectively to determine what the earlier

trier of fact would have done; neither the judge nor the jurors

at the earlier trial may testify at the new trial as to what

they would have done under different circumstances. See

(jury evaluate consequences of attorney negligence objectively).

Rather, the new trier of fact makes an independent determination

as to what reasonably would have been the outcome of the earlier

trial in the absence of negligence, based on the applicable law

and the evidence presented at the new trial. See 4 R.E. Mallen,

Legal Malpractice § 33:8, at 677 (2017 ed.), citing Cecala v.

Newman,

(D. Ariz. 2007) (trier of

fact determines "what the result 'should have been'"); Justice 13

v. Carter,

, 956–957 (8th Cir. 1992); Phillips v.

Clancy,

(1986); Lombardo v. Huysentruyt,

(2001); Harline v. Barker,

(Utah 1996).

Proximate cause in an attorney malpractice case is more

complicated where the defendant attorney contends that the

adverse outcome was the product of the court's legal error.

Judges, being human, sometimes err as to the law.

"Theoretically, it is always foreseeable that a judge might err

in some manner; however, it is not typically foreseeable on what

issues a judge will err and on what issues a judge will rule

correctly." Stanfield v. Neubaum,

(Tex.

2016). Where an attorney makes a reasonable and correct

argument of law and loses because of judicial error that was not

foreseeable, the attorney cannot be found negligent for failing

to prevent or mitigate that legal error. See Correia v. Fagan,

(2008) (liability for professional negligence

dependent on showing loss was "reasonably foreseeable" [citation

omitted]).

But where the judicial error is foreseeable, such as where

a judge or an appellate court has indicated an intention to rule

in a manner that the attorney believes to be an error of law,

then an attorney has an obligation to take reasonable and

prudent steps to prevent or mitigate that error. See Skinner v. 14

Stone, Raskin & Israel,

(2d Cir. 1983);

Stanfield,

. Where the legal error will

certainly doom the client's case, the attorney has few options

but to provide additional argument or briefing in an attempt to

demonstrate to the court the error of its foreseeable ruling of

law. But where the client can still prevail on the facts even

if the court errs as to the law, the attorney is negligent where

he or she fails to take reasonable steps to demonstrate to the

court why the client still wins under the court's erroneous, but

foreseeable, view of the law. For instance, where a judge in a

medical malpractice case has provided counsel with the

instruction the judge intends to give to the jury regarding a

physician's duty to obtain a patient's informed consent for a

medical procedure, and where the physician's attorney fails to

persuade the judge that the instruction is an error of law

because it overstates a physician's duty, and where the

physician has evidence in his or her possession that would prove

that the physician complied with the duty erroneously described

by the judge, the physician's attorney would be negligent if he

or she failed to offer that evidence at trial. Stated simply,

where an attorney will foreseeably lose on the law but can still

win on the facts, an attorney is negligent if he or she forgoes

the opportunity to win on the facts. See, e.g.,

(summary judgment for attorneys reversed in legal malpractice 15

action where attorneys knew of impending judicial error and

failed to take preemptive steps); Lombardo,

(client subjected to "unnecessary risk" where there was

"abundant evidence" that attorney could have foreseen judicial

error and failed to take "all reasonable steps" to mitigate

impact); Temple Hoyne Buell Found. v. Holland & Hart,

, 198–199 (Colo. App. 1992) (obligation to anticipate

"reasonably foreseeable risks" includes taking reasonably

objective steps to avoid impact of foreseeable legal error).6

To be clear, this does not suggest that an attorney has an

obligation under the duty of reasonable care to argue an error

of law. But where a court has indicated that it has a different

view of the law from that of the attorney, and where the client

can prevail on the facts even under that different view, an

attorney is negligent if he or she forfeits that opportunity by

failing to argue in the alternative.

Dechert contends that, where a court rules against a client

based on a foreseeable error of law, the client's attorney

6 The adage penned by Carl Sandburg, attributed to "a battered barrister," comes to mind: "If the law is against you, talk about the evidence . . . . If the evidence is against you, talk about the law . . . . [A]nd . . . if the law and the evidence are both against you, then pound on the table and yell like hell." C. Sandburg, The People, Yes, in The Complete Poems of Carl Sandburg 551 (1969). We discourage attorneys from following the advice in the third sentence, but an attorney may be negligent if he or she fails to follow the advice in the first two sentences. 16

cannot be liable for failing to take reasonable steps to prevent

or mitigate the consequences of that error by offering evidence

that would enable the client to prevail even under the court's

erroneous view of the law, because in such circumstances a

court's legal error will always be the proximate cause of the

adverse judicial decision. It claims that, in the trial within

a trial that occurs in a legal malpractice case, the new trier

of fact must apply the correct law, and the judge's error of

law, not the attorney's negligence, will always be revealed as

the proximate cause of the adverse result. In the context of

this case, Dechert argues that a new, reasonable trier of fact,

correctly applying French law, must conclude that Kiribati

should have prevailed without proof of the consideration paid

for the assignment, and therefore any negligence in failing to

provide that proof cannot be the proximate cause of the lost

$1.76 million.

The fundamental flaw in this argument is that a plaintiff's

loss need not have only one proximate cause; there can be

multiple concurrent proximate causes. See, e.g., Mullins v.

Pine Manor College,

(1983) (injury to

rape victim caused both by assailant and by college's negligent

security); Skinner,

("there [can be] several

proximate or efficient causes of an injury"); Stanfield,

(same). See also Matsuyama v. Birnbaum,

(2008) ("'substantial contributing factor' test is useful

in cases in which damage has multiple causes"). Assuming for

the sake of argument that the court of appeals truly made an

error of law, a reasonable finder of fact would conclude that

there were two independent proximate causes of Kiribati's loss:

Dechert's negligence in failing to furnish the court with proof

of the consideration paid for the assignment, and the court's

error of law in concluding that the assigned subrogation claim

was not enforceable under French law absent a demonstration that

it would not result in "double compensation."

Nor is this flaw cured in the circumstances of this case

by characterizing the judicial error as the superseding cause.

A superseding cause in legal malpractice "(1) must have occurred

after the original negligence; (2) cannot [be] the consequence

of the attorney's negligence; (3) created a result that would

not otherwise have followed from the original negligence; and

(4) was not reasonably foreseeable." 1 R.E. Mallen, Legal

Malpractice § 8:25, at 1049 (2017 ed.). Where the intervening

cause meets all four criteria, the intervening cause is a new

and independent cause that breaks the chain of causation,

becoming a superseding cause that relieves the defendant of

liability for the original negligence. See Kent v.

Commonwealth,

(2002) (intervening event that

is "superseding cause of the harm" breaks chain of factual 18

causation); Mullins,

(superseding cause severs

chain of proximate causation); Stanfield,

(superseding cause is new and independent cause that intervenes

between original wrong and final injury and "thus destroys any

causal connection between the defendant's negligence and the

plaintiff's harm, precluding the plaintiff from establishing the

defendant's negligence as a proximate cause"). But where the

intervening cause (here, the court's alleged error of law) is

reasonably foreseeable and the attorney could have taken

reasonable steps to prevent or mitigate the anticipated harm,

the intervening cause is a "concurring cause" that leaves the

causal link between the defendant's negligence and the

plaintiff's harm unbroken. See

(criminal act of third party is not superseding cause that

excuses negligent security precautions "if such act was, or

should have been, foreseen");

("if the

judicial error alleged to have been a new and independent cause

is reasonably foreseeable at the time of the defendant's alleged

negligence, the error is a concurring cause as opposed to a new

and independent, or superseding, cause"). Because an attorney's

failure to prevent or mitigate an error of law can be negligent

only where it is foreseeable that the court would commit the

error, and because an intervening cause cannot be a superseding

cause where the error was foreseeable, a judicial error cannot 19

be a superseding cause where an attorney is negligent for

failing to take reasonable steps to prevent or mitigate the

judicial error or resulting harm.

Therefore, in determining proximate cause in a legal

malpractice action where there is an alleged error of law, the

trier of fact in the "trial within a trial" must determine

whether the court that foreseeably made the error of law would

nonetheless have ruled in the client's favor had the attorney

taken reasonable steps to prevent or mitigate the error of law.

The standard remains objective, not subjective; the trier of

fact is not attempting to predict what the judge or judges who

made the error of law would have done, but is making its own

determination whether an attorney's reasonable efforts would

probably have prevented or mitigated the error such that the

client would have prevailed. In the context of this case, where

the court of appeals ruled against Kiribati because Dechert

failed to submit the evidence it had been furnished that would

have proved Kiribati's disproportionate payment of attorney's

fees and its release of valuable claims against Lloyd's,

Dechert's failure to provide the court with this evidence may be

found to be the concurrent proximate cause of the court's

adverse decision. The judge therefore erred in ruling that

Kiribati cannot prevail in proving the element of causation.

Because the judge rested his allowance of Dechert's motion 20

for summary judgment on his finding of superseding causation,

the judge did not reach the issue of negligence. Inasmuch as

our review is de novo and Kiribati moved for summary judgment on

that issue, we do reach it. Where it is undisputed that the

court of appeals deferred its decision regarding the assigned

subrogation claim to allow Kiribati to prove the amount paid in

consideration for the assignment by showing the "actual price of

the transfer," and where it was plainly foreseeable from its

first appellate decision that it would not enforce the

assignment without such proof, and where Dechert had the

documentation in its possession that would have demonstrated

that there was substantial consideration for the assignment, we

conclude that Dechert's failure to furnish the court of appeals

with the documentation was so plainly negligent that no expert

testimony is needed to establish it.7 To prevail on its assigned

subrogation claim, Kiribati needed the French court both to

declare the assignment of the subrogation claim valid as a

matter of law and to enforce it. It was perfectly reasonable

7 We reach this conclusion regardless of whether French or Massachusetts law supplies the applicable standard of care. Both Dechert's expert, whose testimony the judge credited with respect to applicable principles of French law, and Kiribati's expert submitted affidavits in which they concluded that French lawyers have an obligation to act with reasonable diligence on behalf of their clients, a duty similar to that required under Massachusetts law. See Pongonis v. Saab,

(1985) ("An attorney owes his client an obligation to exercise a reasonable degree of care and skill . . ."). 21

for Dechert to argue that enforcement under French law follows

inevitably from validity, and that it need not prove that

Kiribati paid substantial consideration for the assignment. But

where Dechert possessed the documentation that would have

enabled Kiribati to prevail on its assigned subrogation claim

even if the court of appeals concluded that proof of

consideration was needed to avoid "a double compensation for the

damages and accordingly an unjust enrichment," it was plainly

unreasonable for Dechert to fail to argue in the alternative and

provide the court with this documentation. Dechert may have

believed that the court of appeals was wrong as a matter of law,

but Dechert could have enabled Kiribati to win on its claim even

if the court of appeals persisted in requiring what Dechert

contended was an unnecessary factual showing to justify

enforcement. In short, Dechert may reasonably have believed

that the question was solely one of law and not of fact, but

where it had in its possession the evidence that would have

enabled Kiribati to demonstrate that Kiribati would not be

unjustly enriched if the court were to enforce the assignment,

Dechert's failure to provide the court with that evidence was

unreasonable.

We have considered and rejected Dechert's contention that

it was barred by a confidentiality provision in the second

settlement agreement from providing the agreement to the court 22

of appeals without Lloyd's approval, which Lloyd's withheld. We

have examined the settlement agreement, which is a fully

integrated agreement, and conclude that it contains no

confidentiality provision that barred such disclosure to the

court. Rather, the agreement provides in paragraph twelve,

"Underwriters shall execute the attached 'ASSIGNMENT OF

SUBROGATION RIGHTS' that Kiribati may use to facilitate the

transfer of interests in the Tahiti litigation without

disclosing the full contents of this Agreement." The fact that

an assignment was attached to the agreement that did not

disclose the full contents of the agreement cannot reasonably be

interpreted as a confidentiality provision barring such

disclosure. Nor can paragraph seven of the settlement agreement

reasonably be interpreted to bar disclosure of that agreement to

the court of appeals. The relevant part of that paragraph

states, "The fact of this agreement shall not be admissible in

the future for any purpose, except in an action to enforce this

agreement or as necessary to implement its terms." It was

plainly necessary to disclose the "fact" of the agreement to the

court of appeals "to implement its terms" where the failure to

do so would foreseeably cause the court to decline to enforce

the assignment of subrogation rights provided in that agreement.

Moreover, it is undisputed that the settlement agreement had

earlier been filed in a court proceeding in Seattle, Washington, 23

with Lloyd's knowledge.

The scope of damages raises another issue that we address.

A plaintiff in a negligence action has a duty to mitigate

damages "that were avoidable by the use of reasonable

precautions." Burnham v. Mark IV Homes, Inc.,

(1982). Where a client suffers an adverse decision because

of both an error of law and an attorney's negligence in failing

to act reasonably to prevent or mitigate that error, the

client's duty to mitigate damages might in some circumstances

require appealing from that adverse decision to a higher court

to correct the lower court's error of law. In such cases, the

loss to the client caused by the attorney's negligence would be

only the attorney's fees and costs incurred in prosecuting an

appeal that would not have been necessary had the attorney acted

with reasonable care. The defendant, however, bears the burden

of proving by a preponderance of the evidence that the plaintiff

failed to fulfil the duty to make reasonable efforts to mitigate

damages. See Sheriff of Suffolk County v. Jail Officers &

Employees of Suffolk County,

(2013) (in

wrongful discharge action, employer bears burden of proof on

issue of mitigation of damages); American Mech. Corp. v. Union

Mach. Co. of Lynn,

(1985) ("[T]he

burden of proving that losses could have been avoided by

reasonable effort rests with the party in breach"). Here, where 24

Dechert recommended against an appeal to the Cour de cassation,

Dechert cannot possibly meet its burden of proving that Kiribati

acted unreasonably by failing to appeal from the court of

appeals decision. Therefore, the loss proximately caused by

Dechert's negligence is the loss arising from the adverse ruling

of the court of appeals on the assigned subrogation claim.

As a result of this analysis, we need not decide whether

the judge abused his discretion in striking the affidavit of

Kiribati's expert on French law. That expert affidavit is not

necessary to find that Dechert was negligent where its

negligence was "obvious," or to find that its negligence was a

concurrent proximate cause of Kiribati's loss. See Global NAPs,

Inc.,

, quoting Pongonis,

.

Nor is it necessary to decide whether the court of appeals was

correct in its understanding of French law regarding the

assignment of subrogation claims, because Kiribati prevails on

its legal malpractice claim regardless of whether the court of

appeals was in error. And we need not determine whether an

appeal to the Cour de cassation would have resulted in the

mitigation of damages by the reversal of the court of appeals

ruling, because Dechert cannot meet its burden of proving that

Kiribati failed reasonably to mitigate damages by deciding not

to appeal.

Conclusion. We reverse the judge's allowance of Dechert's 25

motion for summary judgment and his denial of Kiribati's motion

for partial summary judgment on its legal malpractice claim, and

remand the case to the Superior Court for proceedings consistent

with this opinion.

So ordered.