Joseph E.L. Sullivan v. United States , 77 F.3d 484 ( 1996 )

77 F.3d 484

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Joseph E.L. SULLIVAN, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 95-3090.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 23, 1996.*
Decided Feb. 7, 1996.
Rehearing Denied April 26, 1996.

Before POSNER, Chief Circuit Judge, PELL and BAUER, Circuit Judges.

ORDER

1

This is an appeal from the dismissal, on the defendant's motion for summary judgment, of the plaintiff's damages suit under the Federal Tort Claims Act for alleged legal malpractice by federal defenders who represented the plaintiff unsuccessfully in habeas corpus actions by which he attempted to challenge the revocation of his parole. The district court based its dismissal of the suit on the ground that the judgments in those actions were res judicata. We need not determine the validity of this ground. The government has an alternative ground, of attractive simplicity and unquestionable soundness, for affirmance. The ground has not been waived--indeed was vigorously asserted in the district court--and is therefore available to us as an alternative ground of decision. Although the ground was vigorously urged in the government's brief, the plaintiff, though represented by counsel, has forgone his right to file a reply brief contesting the ground. The ground is simply that the plaintiff has never shown that, had it not been for the alleged malpractice by his previous lawyers, he would have prevailed in his habeas corpus proceedings and as a result had his parole restored. In other words, he has failed to demonstrate a causal link between the alleged malpractice and any harm to himself. The forging of such a link is an element of every common law tort suit, including a suit for legal malpractice. Indeed, failure to prove that but for the malpractice the plaintiff would have obtained some courtroom relief or other tangible benefit is a common shoal on which suits for legal malpractice founder. Because the existence of that link, though placed in issue by the defendant, has not been shown, the suit was properly dismissed and the judgment of the district court must therefore be, and it is,

2

AFFIRMED.

*

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and record