Garcia suggests that there are circumstances where strict compliance with the “suit within a suit” requirement is not required or feasible. For example, a plaintiff may be unfairly prejudiced by the loss of evidence caused by the attorney defendant’s error. Garcia stands in contrast to the recent California decision in Viner v. Sweet, 2004 WL 869671, wherein the more restrictive "but for" causation standard was applied in a transactional legal malpractice case. Taken together, Garcia and Viner suggest that the trial court may have greater flexibility in allowing opinion testimony, but the plaintiff nonetheless still bares the burden of proving that but for the attorney's alleged negligence the plaintiff would not have been damaged.