A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney. They tell you that their expert was precluded, and that the case was lost against all defendants. What’s more, the defendants were permitted to ask hypothetical questions that were not proper. What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable. As an example,in Banister v Marquis ; 2011 NY Slip Op 06544; Appellate Division, Second Department we see the following:

"Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense? Can plaintiff prove to a judge’s satisfaction that testimony from that expert would have made a difference? Is it all speculative?

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled? Obviously the AD felt that there was no "but for" aspect…they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas. There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.