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). “