This legal malpractice case from New Jersey illustrates an interesting point.  DONALD ERICKSON, Plaintiff-Appellant, v. JEFFREY S. LEONARD, ESQ., and HERSH, RAMSEY AND BERMAN, P.C., Defendants-Respondents. 

 Plaintiff’s attorney seems to have narrowed the issues after remand from an appeal, and narrowed them so much, that he lost a second motion for summary judgment.  From reading the decision, it seems that if he had not been so argreeable, there might have been a different outcome.

"On June 1, 2006, the parties appeared before the trial court for a case management conference, contending that they believed the issue, of whether defendants were negligent by not asserting the corporate shield defense in the underlying action, could be resolved on cross-motions for summary judgment. In presenting the matter to the trial court, plaintiff’s counsel stated:

Essentially, the whole issue of the malpractice is whether or not the [defendants] should have made a motion for summary judgment to get [plaintiff] personally out of that case.

We say [they] should have. They say it wouldn’t have been successful.

. . . .

That’s the one question: Was [plaintiff] entitled to have gotten out of the underlying case on summary judgment or not. If he was, the defendants are guilty of malpractice. If he wasn’t, we lose. End . . . of story . . . .

In addressing how the motion would be presented, defense counsel stated:

[A]ll I got to show you is that there was enough for a judge . . . presented with that issue in [20]01 to have said, fact questions, I’m not granting the motion. So I win the motion by just demonstrating enough of a burden to show . . . that the underlying motion wouldn’t have been granted.

The trial judge replied in the affirmative.

"Here, on plaintiff’s motion for summary judgment, the trial judge would have considered the motion as if it had been brought by plaintiff in the underlying action, seeking dismissal of Visakays’ complaint, and as such, would have construed the facts, giving the Visakays, the non-moving parties, "all legitimate inferences therefrom." R. 4:46-2(c). We are satisfied that the trial judge properly denied plaintiff’s motion for summary judgment, which sought a determination that he was not liable to the Visakays in the underlying action as a matter of law because of the corporate shield doctrine. We do not determine whether plaintiff would have been successful in defending the underlying action based on the corporate shield doctrine if the matter had proceeded through trial to a final judgment, only that questions of material fact existed, prohibiting the grant of summary judgment. Having correctly denied plaintiff’s motion, the judge properly granted defendants’ cross-motion, not only because of the limited theory of negligence contained in plaintiff’s expert liability report, but because of the agreement reached between the parties at the case management conference. "That’s the one question: Was [plaintiff] entitled to have gotten out on the underlying case on summary judgment or not. If he was, the defendants are guilty of malpractice. If he wasn’t, we lose. End . . . of story . . . ." "