Strategic choices in medicine and law have always been given great deference by the Courts.  “Medicine is an art, not a science” is often heard in Med Mal trials.  Strategic choices by attorneys may cover a vast area of their acts at trial, in hearings and elsewhere. Wormser, Kiely, Galef & Jacobs LLP v Frumkin  2020 NY Slip Op 33172(U) September 28, 2020
Supreme Court, New York County Docket Number: 160569/2013 Judge: Paul A. Goetz is a good example.

“Turning to plaintiffs motion, plaintiff first argues that they are entitled to a summary judgment order dismissing defendants’ remaining  counterclaim for legal malpractice because their alleged negligent conduct is not actionable as it concerns reasonable strategic choices. Further, plaintiff argues that defendants cannot possibly show that but-for plaintiffs alleged mistakes in the underlying arbitration proceeding they would have obtained a more favorable result. Finally, plaintiff argues that the counterclaim should be dismissed because defendants did not suffer any damages as a result of the alleged malpractice as Mr. Frumkin subsequently sold the condominium units in a sham transaction to an entity owned by his mother, bought out Mr. Persaud, and then
resold the units for a generous profit.

It is well-established that an action for legal malpractice requires proof of an attorneys’negligence, a showing that the negligence was the proximate result of the injury, and evidence of actual damages. Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 67 (1st
Dep’t 2002). While an attorney may be held liable for conduct which falls below the ordinary skill and knowledge commonly possessed by a member of the profession, “retrospective complaints about the outcome of defendant’s strategic choices and tactics, without demonstrating that those exercises of judgment were so unreasonable at the inception as to have manifested professional incompetence” are not actionable. Rodriguez v. Fredericks, 213 A.D.2d 176, 178 (1st Dep’t 1995). Thus, “[a]ttomeys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice.” Dweck Law Firm v. Mann, 283 A.D.2d 292, 293 (1st Dep’t 2002). ”

“However, as discussed in the reply affidavit of plaintiff’s expert Mr. Chertoff, the fatal flaw of defendants’ argument and their expert affidavit is their reliance on hindsight and the conclusions drawn by the arbitrators in their decision, to evaluate plaintiffs strategic decisions at the time of the arbitration proceeding. Affidavit of Gregory H. Chertoff sworn to on August 26, 2020, para. 2. This is not the appropriate standard for evaluating an attorneys’ conduct for purposes of a
malpractice claim. Rather, plaintiffs conduct must be evaluated in the context in which it was made, in comparison to the reasonable skill and knowledge commonly possessed by similarly situated attorneys, and without the knowledge of how the arbitrators ultimately ruled. See
Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 (1st Dep’t 1990); see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 69 (1st Dep’t 2002). “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.