The fifth group arises from the failure to proffer necessary documents. The opponent to a summary judgment motion must offer admissible proof that a question of fact exists. The opponent of a threshold motion must offer the affidavit of a physician setting forth objective proofs of the injury. The proponent of a motion to restore a case marked off must offer an affidavit of merits. A motion to vacate a dismissal must contain an affidavit of merits. A motion to vacate a default requires both a reasonable excuse for the default along with an affidavit stating a meritorious cause of action or defense. The simple failure to append these documents may constitute malpractice.
The sixth group arises from less well-defined acts. Te failure to sue a specific individual, the failure to add certain claims to the complaint, the choice of witnesses, the choice of evidence to include on a motion or at trial, the failures of discovery, investigation, questions at deposition, the choice of expert, the offer of proof at the trial. Deviations from good and accepted standards in these areas can lead to malpractice, but they fall within the question of strategy. A reasonable choice of strategy, reasonable both objectively and subjectively will not be held to constitute negligence.
The seventh group arises from attorney’s wrongful acts of self-interest and conflict of interest. Representation of both parties in a divorce is dangerous, and becoming a partner with a client in a business is not permitted.
At the bottom of the list, but sadly familiar to potential malpractice plaintiffs are failures to communicate with the client. The failure to communicate gives rise to more inquiries by former clients than almost any other reason.