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Rodowicz v. Feldman, Perlstein & Greene, LLC 3:20-cv-00777  D. Conn. 2024 was a legal malpractice suit where the plaintiff claimed that he lost the underlying litigation (a breach of fiduciary duty by a trustee case)  because of his lawyers’ negligence. He had no expert and summary judgment was granted in favor of the lawyers. The explanation:

“In order to demonstrate a “wrongful act or omission,” the plaintiff must establish the “standard of proper professional skill or care,” i.e., the standard by which a lay person—such as a juror—should judge the attorney’s conduct. Grimm v. Fox, 303 Conn. 322, 329-330 (2012). To demonstrate causation, the plaintiff must show what likely would have happened if the attorney had not breached the standard of care. See Bozelko, 323 Conn. at 284.

Establishing the standard of care and causation ordinarily requires an expert witness. The negligence of an attorney and the consequences of that negligence are matters “beyond the field of ordinary knowledge and experience possessed by a juror.” Id. at 284-85. As a result, a claim of legal malpractice usually requires the testimony of an expert witness to prove before a jury. Ibid.; see also Grimm, 303 Conn. at 329-30.

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In Jackson v. Law Offices of Peter Sverd, PLLC, 2024 NY Slip Op 30413 (NY Supreme Court 2024), the plaintiff sued her lawyer for malpractice arising out of an appeal of a discrimination lawsuit. The court held that the plaintiff would not have won the appeal under any circumstances so the lawyer was not negligent in handling the appeal. The reasoning: “Here, this Court finds plaintiff’s arguments do not prevail, and even if the defendant executed a different strategy, and whether the defendant had submitted certain documents, facts, or allegations at the time of the appeal, that would not have rendered plaintiff a more favorable outcome on her appeal. The plaintiff’s grievances or disappointment in the outcome of her appeal handled by the defendant does not constitute legal malpractice.”

If you have a question about a bad outcome in your case, do not hesitate to contact us.

http://www.clintonlaw.net

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One area that can lead to claims against lawyers occurs when the lawyer accepts one part of a representation but declines to represent the client in another matter. Any declination should be communicated clearly to the client and confirmed in writing. If you don’t do that, the client may later bring a malpractice claim against you.

In Boukari v. Schwartzberg, LLC, 2024 NY Slip Op 01247 (March 7, 2024), the plaintiff hired the defendant firm to complete a Workers’ Compensation matter. The lawyers declined to represent the plaintiff in any personal injury action. Plaintiff sued alleging that the firm missed the statute of limitations on the personal injury claim. The Appellate Division held that summary judgment for the law firm should have been granted. The explanation: ”

“Plaintiff’s legal malpractice action should have been dismissed. Contrary to the motion court’s finding, the record conclusively established, as a matter of law, that defendants had clearly informed plaintiff during their initial meetings in May 2014, by way of unambiguous writings confirmed by plaintiff’s signature, that defendants were only assisting her in substituting counsel in a Workers’ Compensation matter and that they had declined to represent her in any personal injury action against the building owner or any third party arising from her slip and fall. Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]”

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Plaintiff lost his malpractice claim against his lawyers because the court deemed his expert reports inadmissible.  In the alternative, Plaintiff argued that his lawyers were negligent by failing to dispute the court’s finding that the operations of a company were illegal. The New Jersey Appellate Court rejected that argument on the basis that plaintiff invited the error.

Finally, plaintiff contends that the Orloff court erred in concluding that UNO’s operation was illegal. He argues that “[t]he court below assumed UNO was illegal, as the trial court in Orloff offhandedly so concluded[.]” According to plaintiff, “the defendants failed to disabuse [the trial court in the Orloff litigation] of the notion that UNO was `illegal,’ and to advance the conclusions to the contrary of international compliance experts, Graves, Erb and McDonald.” We disagree.

First, the facts of this case fall squarely within the invited-error doctrine. “The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.” Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996). The doctrine “is intended to `prevent [a party] from manipulating the system’ and will apply `when a [party] in some way has led the court into error’ while pursuing a tactical advantage that does not work as planned.” State v. Williams, 219 N.J. 89, 100 (2014) (quoting State v. A.R., 213 N.J. 542, 561-62 (2013)). A party “cannot beseech and request the trial court to take a certain course of action, … then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.” State v. Pontery, 19 N.J. 457, 471 (1955).

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Plaintiff claimed that her lawyer was negligent in his handling of her appeal from a case in which plaintiff claimed that Well Fargo had discriminated against her. Plaintiff’s legal malpractice case was dismissed because plaintiff could not show how any lawyer could have won the appeal. The court put it this way: “Here, this Court finds plaintiff’s arguments do not prevail, and even if the defendant executed a different strategy, and whether the defendant had submitted certain documents, facts, or allegations at the time of the appeal, that would not have rendered plaintiff a more favorable outcome on her appeal. The plaintiff’s grievances or disappointment in the outcome of her appeal handled by the defendant does not constitute legal malpractice.” Jackson v. Law Offices of Peter Sverd, PLLC, 2024 NY Slip Op 30413, New York Supreme Court 2024. In sum, the plaintiff could not satisfy the case-within-the-case requirement.

https://scholar.google.com/scholar_case?case=3079078403896264591&q=legal+malpractice&hl=en&as_sdt=400006&as_ylo=2024

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The statute of limitations often defeats legal malpractice claims that might otherwise have some merit. The statute of limitations is the best possible defense a lawyer can have. The statute of limitations differs from state to state. As a client, the important thing to remember is to get moving as quickly as possible once the statute expires. In Titshaw v. Geer, Georgia Court of Appeals 2023, May 24, 2023,  the plaintiff came to believe that his lawyer had erroneously advised him to file for bankruptcy. Unfortunately he waited after four years to file suit so his lawsuit was dismissed pursuant to the Georgia statute of limitations.

If you think you may have a claim, talk to a malpractice attorney as soon as possible. Waiting too long only benefits the lawyer defendant.

Ed Clinton, Jr.

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In Gopstein v. Bellinson Law, LLC, 2023 NY Slip Op 33476, the plaintiff alleged that he retained the law firm to handle a personal injury action, which later settled. Plaintiff claimed that the lawyers were negligent and that their negligence caused him to settle for a reduced amount.  The law firm argued that it was not retained to represent plaintiff in the malpractice action. The court rejected that argument, but dismissed the lawsuit because the allegations that the lawyers were negligent and that their alleged negligence caused damage were conclusory.  The court’s reasoning is succinct: . “Conclusory damages … or injuries predicated on speculation cannot suffice” for a legal malpractice claim (Pellegrino at 64). “[A] failure to establish proximate cause required dismissal … regardless [of] whether negligence is established (Pellegrino v File, 291 AD2d 60[1st Dept 2002]) (Id. at 63).” The complaint did not explain what the breach of duty was or how it might have caused the plaintiff an injury.

If you have a question about a legal malpractice case, do not hesitate to contact us.

Ed Clinton, Jr.

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Abercrombie Group, LLC v. Clark, Court of Appeals of Texas, Second District 2023. The company sued its law firm alleging that the lawyers failed to bring suit in a timely fashion. The lawsuit concerned a promissory note. The plaintiff would be required to prove that had the lawyer acted differently the client would have won the underlying case.  Plaintiff claimed that the lawyer did not sue on time so that it was forced to settle its claim on a promissory note for less than it was worth. The key here is that the plaintiff has to prove that it would have won the underlying case on the promissory note. If plaintiff had no case, the loss is not caused by the law firm

First, a general discussion of the case within a case requirement.

The “case within a case” requirement, also known as the “trial-within-a-trial” or “suit-within-a-suit,” is a fundamental element in a legal malpractice case. Legal malpractice occurs when an attorney fails to provide competent and diligent representation to a client, and this failure results in harm to the client. To successfully bring a legal malpractice claim, the plaintiff (the former client) generally needs to demonstrate the following elements:

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I asked Chat GPT what “Legal Malpractice” is. It produced the following overview, which I then edited.

Legal malpractice refers to a situation in which an attorney fails to perform his duties to a client in a competent and ethical manner, resulting in harm or financial loss to the client. This harm can be due to the lawyer’s negligence, breach of fiduciary duty, or a violation of the standard of care expected from legal professionals. Here’s an overview of key aspects of legal malpractice:

1. Negligence or Breach of Duty: Legal malpractice typically involves an attorney’s failure to meet the standard of care expected in their legal profession. This may include errors in legal strategy, missed deadlines, failure to communicate with the client, or inadequate legal research.

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The Supreme Court of Texas has issued an opinion in USA Lending Group, Inc. v. Winstead, P.C., 669 S.W.3d 195 (2023). In this case the client sued its former law firm for failing to request damages in a default judgment motion. USA Lending hired the law firm to sue its former employee for breach of fiduciary duty. The law firm obtained a default judgment but did not seek an award of damages against the former employee of USA Lending. USA Lending sued the law firm for malpractice alleging that the Law Firm breached the duty of care by failing to include a damages claim in the default motion. The law firm moved to dismiss. The trial court denied the motion to dismiss but the Appellate Court reversed that decision on the ground that USA could not prove causation or collectability. The Supreme Court of Texas, in turn, reversed that decision and reinstated the complaint.

USA Lending provided an affidavit from its CEO that it instructed the law firm to seek damages and an affidavit from an expert witness, a former judge, who opinion that the request for damages would have been granted. A second expert opinion that the judgment could have been collected. The Supreme Court held that the affidavits of USA Lending created a question of fact that could not be resolved on a motion to dismiss and held that the case would be remanded for trial. The court stated:

The motion to dismiss stage is not a battle of evidence; it is the clearing of an initial hurdle.[39] The Act does not select for plaintiffs certain to succeed; it screens out plaintiffs certain to fail—those who cannot support their claims with clear and specific evidence.[40]  Because USA Lending adduced prima facie evidence to support its claim for legal malpractice, the court of appeals erred in ordering the case dismissed. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court.

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