Is it possible to prove legal malpractice at a trial which goes to the jury?  While an argument can be made that the attorney failed to call a particular witness, or failed to offer a particular piece of evidence, the countervailing argument will be that an attorney may choose among several different reasonable trial strategies, and if the case went all the way to the jury, regardless of its outcome, then attorney competence is demonstrated.  If the work was incompetent, it would have been dismissed at trial.

Schlenker v Cascino  2013 NY Slip Op 50631(U)  Decided on April 12, 2013  Supreme Court, Albany County  Platkin, J. is a deeply analyzed discussion of just such an incident.  Apparently, the clients were bringing in solid waste, and dumping it on their property, all the while arguing that they were rendering their farm more crop-friendly.

"Plaintiff brought this action seeking to recover monies for legal services rendered to defendants. In response, defendants asserted a counterclaim for legal malpractice. After disclosure was completed and a note of issue filed, the Court established a day certain for trial of April 8, 2013. Subsequently, plaintiff moved for summary judgment on the breach of contract and account-stated causes of action and for dismissal of the counterclaim. The Court granted summary judgment to plaintiff on the claim for an account stated, denied as moot the application with respect to the claim for breach of contract and granted in part and denied in part the application to dismiss the counterclaim for legal malpractice (Schlenker v Cascino, et al., Supreme Court, Albany County, Index No. 5650-11, December 31, 2012, Teresi, J.).

A jury was selected on April 8, 2013, and proof commenced the following morning. Defendants’ allegations of malpractice pertain to plaintiff’s representation of them in an enforcement action brought by the Town of Copake ("the Town"). The action ultimately proceeded to trial ("the Copake Trial") over three days in February and March of 2009. Following the close of proof and the parties’ submission of proposed factual findings and legal memoranda, Supreme Court, Columbia County (Nichols, J.) determined that defendants had violated certain provisions of the Town Code by depositing solid waste, operating a recycling business and storing commercial equipment and materials without proper authorization. In so doing, Supreme Court rejected defendants’ contention that the Town’s actions unreasonably restricted their right to engage in farming operations in violation of Agriculture & Markets Law ("AML") § 305-a (see Town of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061,1062 [3d Dept 2012]).

At the instant trial, plaintiff testified that he decided not to seek the introduction of these documents into evidence after weighing a number of strategic considerations. Among other things, plaintiff testified that he did not believe that these documents reflected the Department’s final word on the subject. Plaintiff explained that he was aware that the Department was reconsidering its prior determinations based upon allegations that defendants’ alleged agricultural use of the property was merely a pretext for commercial activities, including solid waste disposal.


The Court concludes that defendants have failed to adduce legally sufficient proof to support their claim that plaintiff deviated from relevant professional standards in failing to introduce the three Department letters at the Copake Trial. An attorney’s exercise of professional judgment involving the selection of appropriate evidence to be introduced at trial generally is not actionable as malpractice (Bixby, 62 AD3d at 1140). Given the ongoing nature of the AML § 305-a review process, concerns that the Town and others had presented the Department with damaging new evidence, and the prospect that the Department’s interim determinations would soon be withdrawn or limited, plaintiff’s uncontroverted testimony establishes as a matter of law that his decision not to introduce the Department letters constituted a reasonable course of action under the circumstances. To be sure, introducing the letters in an effort to bolster Mr. Cascino’s testimony, as defendants’ current counsel advocates, may well have been a legitimate trial strategy. But the "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]). "

For more of the Court’s reasoning, read the original, which discusses expert testimony and ascertainable damages.