The fifth group arises from the failure to proffer necessary documents. The opponent to a summary judgment motion must offer admissible proof that a question of fact exists. The opponent of a threshold motion must offer the affidavit of a physician setting forth objective proofs of the injury. The proponent of a motion to restore a case marked off must offer an affidavit of merits. A motion to vacate a dismissal must contain an affidavit of merits. A motion to vacate a default requires both a reasonable excuse for the default along with an affidavit stating a meritorious cause of action or defense. The simple failure to append these documents may constitute malpractice.

The sixth group arises from less well-defined acts. Te failure to sue a specific individual, the failure to add certain claims to the complaint, the choice of witnesses, the choice of evidence to include on a motion or at trial, the failures of discovery, investigation, questions at deposition, the choice of expert, the offer of proof at the trial. Deviations from good and accepted standards in these areas can lead to malpractice, but they fall within the question of strategy. A reasonable choice of strategy, reasonable both objectively and subjectively will not be held to constitute negligenceThe seventh group arises from attorney’s wrongful acts of self-interest and conflict of interest. Representation of both parties in a divorce is dangerous, and becoming a partner with a client in a business is not permitted.

At the bottom of the list, but sadly familiar to potential malpractice plaintiffs are failures to communicate with the client. The failure to communicate gives rise to more inquiries by former clients than almost any other reason.

There is a hierarchy of legal malpractice mistakes, recognizable by even a layperson. At the head of the list is the failure to start an action, whether a result of failure to file a notice of claim under the General Municipal Law, The Public Authorities Law, the Court of Claims act, or other claim-notice acts. That failure may be a result of failing to file the summons and complaint, or failing to purchase a new index number for the complaint. This group of “failing to file” the case is easily recognizable to the lay juror.

The next group consists of failures consists of serving the wrong defendants, failing to obtain jurisdiction over the person, failing to serve an adequate complaint or filing a complaint after the statute of limitations has run. These failures too, are easily recognizable.

The third group arises from calendar control problems and failures to appear on status conferences, clerk’s calls, pre-trial or pre-calendar conferences, and appearances in TAP or the Jury Coordinating Part.

The fourth group arises from other calendar control problems, not created by a failure to appear in court. A case marked off calendar by a party, must be restored within 1 year. A default judgment must be taken within one year. An order must be settled within 60 days or abandoned. A motion to renew or reargue must be made within 20 days, a motion to dismiss for lack of personal jurisdiction must be made within a short time period. A 90-day notice requires a response. A notice of appeal must be filed within 30 days. An appeal must be perfected within the department’s time period.