Articles Posted in Appellate Malpractice

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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.”

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In Cook County, if your case goes to trial, you need to bring a court reporter and get a transcript of the trial. If you don’t’ have one, it is very difficult to appeal.

We were recently confronted with a family law trial where there is no transcript and no record of what exhibits were submitted. An appeal involves an argument that the trial court made an error. How can you argue that there was an error when there was no record of what happened? It becomes almost impossible.  Illinois Supreme Court Rule 321 provides:

The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The common law record includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party. Upon motion the reviewing court may order that other exhibits be included in the record. The record on appeal shall also include any report of proceedings prepared in accordance with Rule 323. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court.

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Proximate causation is often the issue that defeats a legal malpractice case. In this case, even though a law firm failed to timely appeal an interlocutory ruling, there was no malpractice because the ruling was correct. Thus, even if the appeal had been filed on time, the plaintiff would have lost the case anyway.

The underlying case was litigated in the courts of the State of Oregon. Here, the plaintiff hired a law firm to give an opinion on whether an adverse ruling in a case could be appealed. The law firm essentially said that the ruling was interlocutory and that no appeal could be taken until the entire case was completed. To complete the case the plaintiff dismissed its remaining claims and appealed. The appeal was, however, dismissed because it was not timely.

Plaintiff then sued the law firm alleging that the law firm gave incorrect advice on the appeal deadline. The trial court granted summary judgment for the law firm. It held that plaintiff could not establish proximate causation, that is, but for the negligence, plaintiff would have obtained a better result in the underlying lawsuit.

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Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

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Vermont Mut. Ins. Co. v. McCABE & MACK, LLP, 2013 NY Slip Op 2392 – NY: Appellate Div., 2nd Dept. 2013 – Google Scholar.

This case was filed by an insurance company against lawyers who were assigned by the insurance company to handle a subrogation action. The complaint asserted two legal theories; legal malpractice and fraud.

The trial court dismissed the fraud claim. The Appellate Division reversed. It held that the insurance company had properly alleged fraud when it claimed the lawyers (a) billed it for filing a motion for default judgment; (b) received payment for the work when (c) the lawyer never actually filed the motion for default judgment.

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Filed October 5.

This is a disciplinary case against Herbert Arthur Bates, an attorney in Illinois.  Bates was retained by a convicted criminal to handle his appeal.  Bates was paid $10,000.  Unfortunately, he missed numerous deadlines and the appeal was dismissed.  He also failed to return the transcripts to the inmate so the inmate could do the appeal by himself.  The ARDC Hearing Board recommended a suspension of eighteen months.  Bates ultimately refunded the money he was paid to handle the appeal.

The Panel explains:

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