Keeping up to date is one way to avoid legal malpractice problems.  Here is a case from the Court of Appeals.  Notice the "immediately"

"We have recognized only two exceptions to prior written notice laws — "where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999][citations omitted]). Further, "the affirmative negligence exception . . . [is] limited to work by the City that immediately results in the existence of a dangerous condition" (Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005][emphasis added]). Here, plaintiff presented no evidence of who last repaved this section of the roadway before the accident, when any such work may have been carried out, or the condition of the asphalt abutting the manhole cover immediately after any such resurfacing. Next, even assuming that the special use doctrine applies to a manhole situated in a City public street, plaintiffs presented no proof of any special benefit conferred on the City. Finally, we note that the expert’s opinion was not inadmissible merely because nearly four years elapsed between the accident and the expert’s inspection of the site. Because the expert could not supply any reliable evidence as to the elements of the exceptions to the prior written notice law, however, whether the trial court erred in precluding the expert’s testimony is a question that does not affect the outcome of this case. "

Here is a medical malpractice case in which a physician for the Workers Compensation board examines an injured worker, and tells him that a request for surgery will not be granted, and that the worker does not need surgery, only physical therapy.  Even though the examining physician is not plaintiff’s doctor, he is denied summary judgment.

This medical malpractice case is of interest to legal malpractice practitioners, because it is a stong example of liability without privity.  Think for a while, and analogies come to mind.  A second opinion by an attorney?  An attorney for an insurance company turning down a claim?  An opinion letter? 

 

This case illustrates the problem of being ready for trial.  The case was scheduled months ahead, and presumably the expert was known at the time of trial.  However, the expert could not be coaxed into the courtroom.  Result?  Case dismised on failure to prosecute grounds.  AD affirms, but on failure to demonstrate prima facie case.  In either event, this is the end of the case.  Q:  Whose fault was nonappearance?

This case illustrates withdrawal by a defense attorney in a civil litigation, and how the court wrongfully directed that the case go on to trial without a short adjournment for defendant to get a new attorney.  Result?  Plaintiff tries case, gets verdict, defends appeal, loses appeal, and has to start all over again.  In the long run, perhaps not the best strategy. 

The New York Times reports that a Federal Grand Jury is hearing testimony on attorney fees taken in an American Home Products case settlement problem.  The problem is that when the case was settled for about $ 200 Million in favor of 440 plaintiffs, the attorneys misled state court judges and  did not tell them that retainers allowed the attorneys 30-33% contingencies.  Instead, they ended up with closer to 50%.  This settlement also netted a judge who ruled that a charity had to be set up with part of the settlement proceeds. He told the Kentucky Judicial Conduct Commission that he "didn’t know" of the 30% retainers. The judge then left the bench to head up the charity.  According to the NY Times, Clients ended up with less than 40% of the settlement.

Is the question of legal malpractice at the back of litigator’s minds?  It probably is, if only for the reason that good lawyers are always calculating whether they are doing a good enough job, or, for that matter, doing enough in a case.  Here is an example from overlawyered

"Well — as Ted points out in the comments to her post — I had said "thousands," not "millions." But the bigger problem with what she wrote is that she dramatically underestimates the burden and cost of litigation. We’ll put aside the fact that her proposal — to have paralegals file boilerplate responses — would constitute legal malpractice on the part of the defense attorney."

The NY Court of Appeals has decided that the following items are necessary in a Court of Claims notice.  Failure to include them results in dismissal and presumably, legal malpractice.

Actions filed in the Court of Claims must enumerate the "total sum" of monetary damages being sought or they are invalid, the Court of Appeals decided yesterday.

A 5-0 ruling found that Court of Claims Act §11(b) specifies that five pieces of information have to be included in every claim filed for damages against the state with the Court of Claims. They are the nature of the claim, the time when it arose, the place where it arose, the items damaged or injury sustained and the "total sum" claimed. Kolnacki v. State of New York

BlawgIT and Law.Com "reports that a legal malpractice insurance carrier may be putting the kibosh on law blogs (blawgs). The article states that the insurance carrier, Executive Risk Specialty, a unit of Chubb, informed lawyer James Paone II, of Lomurro Davison Eastman & Munoz that lawyer blogging "is not a risk they are interested in undertaking."

Will there be a new question on legal malpractice insurance appllications, asking whether you have a web site, a blog site, whether you write, whether you lecture?

Keep tuned.

 

What are the elements of Professional Malpractice?

Malpractice is a professional’s failure to use minimally adequate levels of care, skill or diligence in the performance of the professional’s duties, causing harm to another. In New York, attorney malpractice is defined as a "deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome."

The first element of a relationship between the client and the professional was previously discussed. The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of "but for." The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that "but for" the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that "but for" the deviation, more than the policy limit was available and could have been recovered from the defendant.

      It’s not entirely clear how the relationship between Attorney Fishkin and Marlow arose with Attorney Taras but it appears that Taras referred cases to Fishkin, or Fishkin was hired by Taras to work on the cases. many settled, but Fishkin and Marlow were not paid. They sued Taras for legal fees and lost on the basis that they did not file retainer statements with the Office of Court Administration within 15 days. This rule applies in the 1st Department for contingent personal injury cases. See Justice Edmead’s decision today.

"DEFENDANT ATTORNEY moved for summary judgment in this fee dispute with plaintiff attorneys, who claimed they were hired as outside counsel by defendants under an oral agreement to render legal services on personal injury cases in which defendants were retained by a client on a contingency fee basis. Defendants argued plaintiffs failed to file retainer statements in all nine of their claims under 22 New York Codes Rules and Regulations §603.7(a)(3), precluding them from recovering any legal fees. Plaintiffs argued the filing of a retainer statement was not a condition precedent to receiving a legal fee. The court stated an attorney who was retained by another attorney on a contingency fee basis in a personal injury action must file a retainer statement with the Office of Court Administration within 15 days of being retained. Thus, it stated as retainer statements were not timely filed in three matters and in the absence of proof retainer statements were timely filed in the remaining six claims, those actions could not be maintained, granting defendants’ motion .