This is really the central question in legal malpractice.  While the popular conception is that one needs to find the mistakes, the truth is that there are mistakes in every human endeavor.  What counts in legal malpractice is the linkage to a bad outcome.  However, Justice Schaffer gives a much better response in Landau, P.C. v LaRossa, Mitchell & Ross ;  2010 NY Slip Op 50620(U)
Decided on April 7, 2010 ;  Supreme Court, New York County ;  Schlesinger, J.
 

"This brings the Court to its final discussion of what precisely the plaintiff has to prove to recover from the defendant, and whether either side is deserving of having its motion granted.

As everyone here acknowledges, because it is the law (!), a plaintiff in a legal malpractice case, must do more than simply allege and prove that his attorneys were negligent in representing him; he also must show that the negligence made a difference in the outcome, so that a plaintiff must show that he would have prevailed or received a greater award but for the negligence of his lawyer. [See, e.g., Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007)] Or in the case of a defendant, would not have suffered the damages he did. The latter situation is what the plaintiff argues here. He urges that because there was ample evidence to show the cases would have likely settled or been successfully tried without the tainted evidence, even if those awards might have been less than was actually received, the damages that he ultimately paid back to the City would have been less, and perhaps much less. The opposing sides differ as to how much the plaintiff has to prove on that point at this stage of the proceedings.

In this regard, a legal malpractice action has often been described as a trial within a trial. This is so because the plaintiff must adduce evidence that shows at least a likelihood that he would prevail on the underlying merits of the case. So, for example, in the First Department decision, Tanel v. Kreitzer & Vogelman, 293 AD2d 420 (2002) the Appellate Division found that the defendants’ motion for summary judgment in the malpractice action should have been granted. While it was conceded that the defendant law firm was negligent in failing to move for a default judgment within one year of the hospital’s default, the plaintiff had failed to successfully oppose the affidavit of the medical expert who opined that there was no medical malpractice. Therefore, the plaintiff was unable to show the underlying case had merit or that but for the negligence of the [*6]defendant, they would have prevailed. All that was required there, as suggested by the Court, was to successfully present competing proof to show that their claim had merit. But they did not and so the action was dismissed.

But here, the plaintiff does show, despite the contrary arguments made by defense counsel, that in both actions there was testimony and documents to prove a prima facie case on the issue of constructive notice, the only seriously contested issue, without the use of the tainted evidence. The 1995 reargument papers by the defendant, for which they must take responsibility, prove that point.

So has the plaintiff here done enough to satisfy the "but for" element of a legal malpractice case? I believe it has. As the Court said in Gladden v. Logan, 28 AD2d 1116 (1st Dep’t, 1967):

Obviously it is impossible to show conclusively that had that action gone to trial it would have resulted in a verdict favorable to plaintiff. What plaintiff must do is to prove such facts in regard to the accident as enables a jury to find that she would have recovered.

As was said in Zarin v. Reid & Priest, 184 AD2d 385 (1st Dep’t. 1992 citing to Carmel v. Lunnay, 70 NY2d 169). "The test is whether a proper defense would have altered the result of the prior action.’ "The plaintiff maintains that it is likely here that it would. The defendants insists that it would not have. Thus, I find a classic dispute regarding the interpretation to be given to the same facts. This, then, should result in a denial of both motions, and it does.

Eisen, P.C. should finally have its day in court on its claim that the defense did not adequately oppose the City’s motion leading to a settlement in the latter’s favor for over a million dollars. There were factual contentions made by the City in that motion that were never challenged. That arguably was not simply a matter of judgment. I say that, because nowhere in the voluminous papers submitted by the defense, is the argument ever made that there were good reasons or any reasons for the omission. The only explanation proferred was that it was Mr. Eisen’s idea and decision to exclude that argument. For reasons previously discussed, that is not good enough.

The plaintiff is not entitled to summary judgment on liability because it is part of its burden in a legal malpractice to show both aspects, i.e., that there was substandard representation which influenced the result in an unfavorable way. The defendants counter that they were not negligent, or that even if they were, there would have been no different result. "

In Martinez v Te 2010 NY Slip Op 03391 ;Decided on April 27, 2010 ;Appellate Division, First Department Catterson, J.  Justice Catterson of the First Department discusses a trial gone wrong in Bronx County, and overrules Judge Wright’s post trial decision.
 

In this  medical malpractice case, the jury sent notes, and then decided against plaintiff.  We’ll let Judge Catterson take it from here: "At 3:15 P.M., the jury returned a verdict for Dr. Te. During polling, one juror, regarding the second interrogatory (whether Dr. Te departed from accepted standards of care by performing the WIT on plaintiff in view of the size of his middle lobe), responded "yes, because we don’t have the actual – well, I say yes and why, because I say no, because we don’t have the standard procedures to go for." The court responded "there was a question from the jury asking for anything, any documents setting forth the standard. There were none." The juror responded "[t]here weren’t, so." Again, plaintiff sought no clarification of the juror’s statements nor made any objections prior to the jury being discharged.

Several months later, the plaintiff moved to set aside the verdict. The plaintiff argued that the proof of liability was "overwhelming," in contrast to Dr. Te’s "weak defense." The plaintiff argued that Dr. Te conceded that it was a reasonable conclusion that the "impassable" stricture in the urethra was caused by the hot water therapy. The plaintiff concluded that this concession weakened the defense, especially in view of Dr. Kaminetsky’s evidence that the stricture was in the bulbar urethra and Dr. Cohen’s testimony that the stricture was caused by the misplacement of the catheter during the WIT procedure. Hence, the plaintiff argued that the verdict was inconsistent with the weight of the evidence. "

One thing we’ve remebered for many years is that an inconsistent verdict must be preserved by asking for corrective action before the jury is disbanded.  Here, the Court holds, "Initially, we note that the bulk of the plaintiff’s arguments are unpreserved. The absence of any objection or request for clarification with regard to the court’s response to the jury note, or to the verdict (Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 220, 841 N.Y.S.2d 486, 490 (1st Dept. 2007); Maione v. Pindyck, 32 AD3d 827, 829, 821 N.Y.S.2d 110, 112-113 (2d Dept. 2006)), on the basis that the jury was "confused," prior to the jury being discharged, has deprived this Court of an adequate record to review the claim. If the verdict had been questioned at that time, the matter could have been promptly resolved. Hence, the court, in setting aside the verdict on the basis asserted, necessarily deprived Dr. Te of an opportunity to address the claim when it could have been resolved prior to the jury being discharged.

Accordingly the order of the Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 5, 2009, which granted plaintiff’s motion to set aside the verdict, should be reversed, on the law, the motion denied and the verdict reinstated."

A trend in legal malpractice retainer agreements, especially in the Intellectual Property field is the all encompassing Arbitration clause.  Beyond the statutory required arbitration in attorney fee disputes below a certain dollar figure, these arbitration clauses require arbitration of all disputes, whether in tort, contract or other claims. 

Arbitration has long been said to be quick and economic, but recent experience has led to a different take.  In a $1 million dollar legal malpractice case, the fees to the arbitration company and to the arbitrator may approach $ 75-$100,000.  Of course to bring the same action in Supreme Court costs about $ 385. 

Matter of Brady v Williams Capital Group, L.P. ;2010 NY Slip Op 02434 ;Decided on March 25, 2010 ;Court of Appeals ;Jones, J. investigates the situation in which a litigant can’t afford arbitration, and the consequences.  Without deciding the case [it requires further fact finding in Supreme Court] the Court of Appeals reviewed Federal law in pursuit of an answer.
 

in Green Tree Financial Corp-Ala. v Randolph (531 US 79 [2000]). In Green Tree, the Supreme Court, applying Gilmer, recognized that "the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum" (531 US at 90), a result which cuts against the broad public policy in favor of arbitration. Further, the Supreme Court adopted a case-by-case approach by ruling that "where . . . a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring [the] costs" that would deter the party from arbitrating the claim (id. at 92). Although the Green Tree Court did not set forth a standard of how detailed a showing the party seeking to invalidate an arbitration agreement must make, the Court held the "risk" of "prohibitive costs is too speculative to justify the invalidation of an arbitration agreement" (id. at 91). "
 

In adopting the standard New York courts are to apply in resolving the question of a litigant’s financial ability, we are mindful of the strong State policy favoring arbitration agreements and the equally strong policy requiring the invalidation of such agreements when they contain terms that could preclude a litigant from vindicating his/her statutory rights in the arbitral forum. We believe that the case-by-case, fact-specific approach employed by the federal courts (see e.g. Bradford; Morrison v Circuit City Stores, Inc., 317 F3d 646 [6th Cir 2003]; Spinetti v Service Corp. Intl., 324 F3d 212, 218 [3d Cir 2003]), as well as the principles set forth in Gilmer and Green Tree, properly acknowledge and balance these competing policies.

Based on the foregoing, we hold that in this context, the issue of a litigant’s financial ability is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum (see Bradford, 238 F3d at 556). Although a full hearing is not required in all situations, there should be a written record of the findings pertaining to a litigant’s financial ability. Finally, we do not see the need to detail the precise documentation a court should request to resolve this issue. Such matters are best left to the court’s discretion.

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ’s face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client’s theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Christus Gardens lost the infringement case brought by the copyright owner of "Miracle Face," a giant sculpture resembling a burial stone that served as the main attraction at Christus Gardens.

Self-described as "America’s No. 1 Religious Attraction," the park closed in January, according to its Web site.

The owner of the "Miracle Face" copyright sued Christus Garden in federal court after it began selling in its gift shop miniature versions of the sculpture created by other companies. Those companies had used the copyrighted sculpture to create a mold for the smaller items.

The federal district court found Christus Gardens liable for $100,000. "

Sometimes its obvious what responsibilities the attorney will take on in a new representation.  If it’s a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial.  Here, in  Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department  the attorneys took on a more limited role.
 

From the decision:  "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father’s estate. This documentary evidence conclusively established a defense to the plaintiff’s claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff’s individual liability on the notes was a matter outside of the scope of the defendants’ representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]"

The perennial question of whether a prior proceeding might influence a later proceedings arises again in Feinberg v. Boros, 2010 NY Slip Op 30797, by Justice Emily Jane Goodman, in Supreme Court, New York County. 

The legal malpractice claim arose after an arbitration between plaintiff and his former business partner, where defendants acted as Feinberg’s party arbitrator and later as counsel in a law suit against the former accountants to the business.  The claim is that defendants failed to advise plaintiff about the collateral estoppel effect of the arbitration award on his subsequent suit against the accountants for malpractice.

Such malpractice – malpractice lawsuits are more common than one might imagine.  While the popular conception is that the client is litigious, or lawsuit-crazy, the better and more accurate version is that the client has moved from one situation to the next in search of a proper finding of liability.

The decision in Scartozzi v Potruch   10 NY Slip Op 03102 ; decided on April 13, 2010 ; Appellate Division, Second Department is long on discussion of summary judgment standards and a little short on background, but it appears that defendants gave advice to plaintiff in her divorce proceeding to forego trying to avoid payments to the prior attorney, and failed to advice her that she could instead collect her own attorney fees.
 

At the end of the day, plaintiff has two causes of action for legal malpractice left, with the balance of the claims weeded out.

"The Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the fourth cause of action, as well as the fifth cause of action alleging that the defendants improperly entered into a stipulation with prior counsel on the plaintiff’s behalf. In opposition to the defendants’ prima facie showing with respect to those causes of action, the plaintiff failed to raise a triable issue of fact.

Furthermore, as the defendants correctly argue, so much of the first cause of action as alleged, and the second cause of action alleging, breach of contract were duplicative of the cause of action alleging legal malpractice, as there was no evidence that the defendants promised to obtain a particular result (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). Accordingly, the Supreme Court properly dismissed the second cause of action, and the first cause of action insofar as it alleged breach of contract.

However, the Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action insofar as it alleged legal malpractice. Contrary to the defendants’ contention, the Supreme Court erred in determining that collateral estoppel barred the plaintiff from challenging as legal malpractice the defendant’s advice that she waive her right to seek prior counsel fees in the matrimonial action because she sought, unsuccessfully, to set aside the stipulation waiving the fees. In order to invoke the doctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in the prior action and be decisive of the present action, and (2) the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Franklin Dev. Co., Inc. v Atlantic Mut. Ins. Co., 60 AD3d 897, 899). Here, the issue of whether the stipulation could be set aside was not identical to the issue of whether the defendants were negligent in advising the plaintiff to waive the fees. Thus, the plaintiff is not precluded from asserting a cause of action alleging legal malpractice based on the defendants’ allegedly negligent advice (see Bishop v Maurer, 9 NY3d 910, 911).

To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice (see Boglia v Greenberg, 63 AD3d 973, 974; Fasanella v Levy, 27 AD3d 616; Suydam v O’Neill, 276 AD2d 549, 550). Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law by presenting admissible evidence establishing that the plaintiff could not prove that, in advising her to waive her right to request an award of her prior counsels’ fees, they "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (McCoy v Feinman, 99 NY2d 295, 301).

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the third cause of action insofar as it alleged that they were negligent in giving incorrect information to successor counsel concerning the date by which the plaintiff’s motion pursuant to CPLR 4404 had to be filed. In opposition, the plaintiff failed to raise a triable issue of fact. However, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the third cause of action insofar as it alleged that the defendants failed to present certain evidence at trial. "

Sometimes we ruminate on the fact that legal malpractice law is written by attorneys, utilized against attorneys, and rulled on by attorneys.  There is no way around the conundrum.  In Christ v Law Offs. of William F. Levine & Michael B. Grossman ; 2010 NY Slip Op 03056 ; Decided on April 13, 2010 ; Appellate Division, Second Department  we perceive a glimmer of how attorneys may get a leg up, or an easier time in legal malpratice litigation.  From the case:
 

"The plaintiffs retained attorney Harold Solomon to prosecute a property damage claim against the Village of Garden City arising from a sewer backup at their house. Solomon failed to timely commence a negligence action against the Village based on that claim. Thereafter, the plaintiffs hired the defendants in this action to represent them in a legal malpractice action against Solomon, which the defendants commenced. In an order dated April 18, 2002, the Supreme Court (Franco, J.), granted Solomon’s motion for summary judgment dismissing the complaint in that legal malpractice action. The Supreme Court found that the plaintiffs failed to raise any triable issues of fact as to the Village’s negligence, as there was no evidence showing that the sewer backup was a recurring condition or that the Village had notice of the defect which caused the sewer backup. The plaintiffs subsequently discovered documents which allegedly demonstrated a history of sewer [*2]backups in the vicinity of their home. They also discovered that both Solomon and the defendants had made Freedom of Information Law requests (see Public Officers Law article 6) for those documents, but had failed to follow up when the Village did not respond to those requests. The plaintiffs then commenced this action, alleging the defendants committed legal malpractice by failing to obtain the documents relating to recurring sewer backups in their neighborhood prior to the dismissal of their action against Solomon.

The plaintiffs retained attorney Harold Solomon to prosecute a property damage claim against the Village of Garden City arising from a sewer backup at their house. Solomon failed to timely commence a negligence action against the Village based on that claim. Thereafter, the plaintiffs hired the defendants in this action to represent them in a legal malpractice action against Solomon, which the defendants commenced. In an order dated April 18, 2002, the Supreme Court (Franco, J.), granted Solomon’s motion for summary judgment dismissing the complaint in that legal malpractice action. The Supreme Court found that the plaintiffs failed to raise any triable issues of fact as to the Village’s negligence, as there was no evidence showing that the sewer backup was a recurring condition or that the Village had notice of the defect which caused the sewer backup. The plaintiffs subsequently discovered documents which allegedly demonstrated a history of sewer [*2]backups in the vicinity of their home. They also discovered that both Solomon and the defendants had made Freedom of Information Law requests (see Public Officers Law article 6) for those documents, but had failed to follow up when the Village did not respond to those requests. The plaintiffs then commenced this action, alleging the defendants committed legal malpractice by failing to obtain the documents relating to recurring sewer backups in their neighborhood prior to the dismissal of their action against Solomon.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744; Nicastro v Park, 113 AD2d 129, 134). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather, requires a discretionary balancing of many factors (see Cohen v Hallmark Cards, 45 NY2d 493, 499). It is for the trier of fact to make determinations as to the credibility of the witnesses, and great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr. Auth., 19 AD3d 343). Under the circumstances, the jury’s determination that the Village was negligent in maintaining its sewer system was supported by a fair interpretation of the evidence. "