(dissenting).
I would affirm the summary judgment entered on behalf of defendant.
At the outset, it should be kept in mind that in an action against an attorney for negligence or violation of duty, the client has the burden of establishing that the attorney was negligent and that but for that negligence the client would have obtained a favorable judgment in the original action. Taylor Oil Co. v. Weisensee, 334 N.W.2d 27 (S.D.1983). See also Harding v. Bell, 265 Or. 202, 508 P.2d 216 (1973) and Lewandowski v. Continental Cas. Co., 88 Wis.2d 271, 276 N.W.2d 284 (1979), and authorities cited therein. The question before us in the instant case, then, is whether attorney Deering did something that he should not have done or did not do something that he should have done and, if so, whether it made any difference.
With all due respect to the majority opinion, after carefully reviewing the record in this case I agree with the trial court that Nemec received adequate and satisfactory representation both during pretrial proceedings and at the trial itself.
The first issue that should be laid to rest is Deering’s alleged failure to honor Nem-ec’s request that the claim for damages be tried before a jury in federal court. For the purposes of discussing this issue, I will accept as true Nemec’s allegation that he had instructed Deering to bring the damage claim on for trial before a federal court jury and that Deering had agreed to do so. That done, the question remains regarding what damage Nemec can establish as a result of Deering’s failure to honor his commitment to his client. Are we holding that a litigant is likely to receive greater consideration of his claim by a federal court jury than he is by one of our state court judges sitting as the finder of fact? Nemec has cited no authority for this proposition, and I consider it an unwarranted admission to hold, sub silentio, that our state courts constitute a tribunal for the adjudication of our citizens’ legal claims inferior to the federal courts.
To hold that Nemec is not entitled to recover damages for Deering’s failure to bring the damage claim in federal court is not to say that Deering might not be subject to disciplinary action if it should be established that he was guilty of being less than candid with his client. See, e.g., South Dakota Code of Professional Responsibili*58ty, Canon 1, DR 1-102(A)(4); Canon 7, DR 7-101(A)(l), SDCL 16-18, Appx. A malpractice action against an attorney should not be used as a substitute for a disciplinary action, however, and thus Nemec’s allegation regarding the federal jury trial issue is misplaced.
In conclusion with respect to this issue, the opportunity of testifying before a federal court jury with respect to his experiences with Texaco might well have constituted a cathartic experience for Nemec, given the record of the major oil companies for cavalier, heavy-handed treatment of their small dealers, but would the result have ultimately been any different than it was in the trial before Judge Heck in state court? My review of the record persuades me beyond any reasonable doubt that the answer is in the negative.
With respect to Deering’s alleged negligence in failing to require the production and auditing of Texaco’s records prior to trial, the record reveals that Deering engaged in informal discovery procedures regarding the production of documents during his deposition examination of witness Smythe. The record does not reveal that Texaco’s counsel failed in any way to produce the documents that they had agreed to furnish Deering. In any event, whether there were any other documents than those produced which related to the commissions claimed by Nemec seems to be immaterial inasmuch as Nemec has admitted in his brief to this court that he had been credited with the earned commissions. His complaint seems to be that the commissions had not been paid to him. If there is a difference between being paid for commissions and receiving credit on one’s account with the entity from whom the commissions are due, the distinction escapes me.
With respect to Deering’s alleged negligence in failing to object to the introduction of Texaco’s business records on the grounds of materiality, authenticity, and hearsay, suffice it to say that the record made at trial quite clearly indicates that Judge Heck properly admitted the proffered exhibits under the business records rule. SDCL 19-16-10. This court has long adopted a liberal approach to the admission of business records. See, e.g., Moore v. Farmers Insurance Exchange, 323 N.W.2d 870 (S.D.1982); People in Interest of T.L.J., 303 N.W.2d 800 (S.D.1981); State v. Ristau, 290 N.W.2d 487 (S.D.1980); Plank v. Heirigs, 83 S.D. 173, 156 N.W.2d 193 (1968); and Bentz v. Cimarron Ins. Co., 79 S.D. 510, 114 N.W.2d 96 (1962). Indeed, if on appeal from Judge Heck’s decision the only ground of error alleged would have been the erroneous admission of the challenged records, I would venture to say that we would have summarily affirmed the judgment under SDCL 15-26A-87.1(3).
With respect to the claim that Deering should have brought to the trial court’s attention more forcefully the rule of contract law regarding silence by an offeree, we tread here on dangerously subjective ground, for how can we tell from the pages of the cold record how forcefully, or un-forcefully, an attorney has presented a claim to a 'trial judge sitting without a jury? Moreover, Texaco did reply to Nem-ec’s variously stated offers, not only through Smythe’s negotiations, but also ultimately through the written agreement and the subsequent deliveries of gasoline and the accompanying invoices. It seems quite clear from the record that Nemec could not possibly have been under any misapprehension regarding Texaco’s position regarding the price to be paid for the equipment. Given this background, Deer-ing should not be faulted in presenting Nemec’s position in the manner in which he did.
Finally, was Nemec poorly advised regarding the presentation of his counterclaim? For Nemec to now even raise this question boggles the mind, for not until he filed his affidavit in response to Deering’s affidavit in support of the motion for summary judgment did he come forth with the proposition that his claim against Texaco should have been based only upon the “more reasonable” eight cent per gallon margin of profit rather than the seventeen or eighteen cent price per gallon margin *59that he had used in computing his trial-time claim of unpaid commissions in the amount of $129,426.85. One is tempted to use the Yiddish term that best describes Nemec’s audacity in now contending that his trial counsel erred in accepting and presenting the figures that he himself had compiled in support of his claim. If the presentation of the counterclaim was confusing, it was the result of Nemec’s own computations and subsequent testimony at trial that “a deal is a deal.” It will not now lie in Nemec’s mouth to claim that Deering should have presented a claim other than that which Nemec attested to. Had Deering presented a claim based solely upon an eight cent per gallon margin figure, no doubt Nemec would be alleging malpractice in Deering’s waiver of the balance of his original claim. In any event, as appears from his memorandum decision, Judge Heck clearly understood the issues involved in this case and just as clearly, and correctly, ruled that Nemec was not entitled to take advantage of the obviously mistaken gasoline price quotation and that the distributorship agreement had not fixed that artificially low price as the base price upon which all future deliveries of gasoline could be purchased. Moreover, Deering, in his opening statement, his cross-examination of witness Smythe, and in his direct examination of Nemec fully and fairly presented the eight cent per gallon margin theory of recovery to the trial court. That the trial court did not accept this theory is hardly Deering’s fault, unsupported as it was by anything other than Nemec’s bare allegations.
In summary, although it is certainly true that no court should excuse or overlook an attorney’s malpractice that resulted in a loss to the client, neither should an attorney be forced to run the gauntlet of a specious malpractice action brought by a disgruntled, dissatisfied client. Because I am firmly convinced that the instant case falls into the latter category, I would affirm the trial court’s summary judgment.