But what a hill the family now had to climb! The Pinnicks had to show that the missing Diamante would have proved their liability case. How could they possibly show that without the Diamante? The Pinnicks hadn’t been able to win without the car even with the mighty Corboy & Demetrio on their side. Now the firm was working against them!
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Doesn’t this seem reasonable? The Pinnicks can’t prove the car would have been a game changer because they don’t have the car. So at least put the burden on Corboy & Demetrio to argue that the car wouldn’t have made the difference. The appellate order examines a California case, Galanek v. Wismar, that did just that — it put the burden on the law firm.
For Travelers, substitute Corboy & Demetrio — and if you ever have a day in court you should hope it’s half as cushy. If the Pinnicks had won without the car, no harm done. If the Pinnicks had lost without the car, which they did, who’s to say they wouldn’t have lost even with it? So no harm provable.
