Articles Posted in Legal Malpractice

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Skyline-6-300x200One of the recurring issues with legal malpractice litigation is, even if the lawyer was negligent, the plaintiff must prove that there would have been a better financial outcome absent the mistake. As this case illustrates, this can be tough to do. Here, the court held that plaintiff’s alleged injury was based on impermissible speculation. This opinion is well-written and thoughtful.

Dozier v. Ellis Law Firm, PLLC, No. COA26-251 (N.C. Ct. App. Nov. 4, 2026) (unpublished) (Gore, J., joined by Tyson and Wood, JJ.), appeal from No. 24CVS000792-310 (Durham Cnty. Super. Ct. July 15, 2025). While the case is unpublished, the reasoning is excellent and should be considered by anyone who practices in this area.

Regina Dozier sued Ellis Law Firm, PLLC and attorney Autumn D. Osbourne for legal malpractice. The claim came out of their work for her in an equitable distribution case against her former husband, Charles Dozier.

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Stewart v. Brill & Fishel, 2026 IL App (1st) 240056-U

This is an unpublished Illinois First District Appellate Court decision issued May 12, 2026, reversing a circuit court grant of summary judgment in a legal malpractice case.

Background. Plaintiff Ricky Stewart was injured in 2017 when he fell while working in a Jewel grocery warehouse, suffering a herniated cervical disc that required surgery. He retained attorney Francine Fishel of Brill & Fishel, P.C. to pursue a workers’ compensation claim against Jewel. Following an arbitration hearing, the arbitrator denied Stewart all benefits, finding he failed to prove both that his injury arose out of his employment and that a causal connection existed between his fall and his injuries. Stewart then sued Fishel for legal malpractice, alleging she committed several critical errors in handling his case.

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Malpractice cases arising out of litigation matters always involve some sort of claim involving the underlying case. This is one such case where the plaintiff claimed that its lawyers negligently waived a defense it had to an underlying claim. The trial court dismissed the complaint but the Appellate Division reinstated it.  Park West is claiming that in the underlying personal injury case its lawyers should have raised the defense that Ms. Rivera was an independent contractor, not an employee. If she was an independent contractor, Park West would not have been liable for the car accident in the underlying case. (We don’t know whether or not this is true. We only know what Park West alleged in its malpractice complaint. The complaint is merely allegations and has not been proven.) Still the case is interesting. If you have a question or suspect you were a victim of malpractice, do not hesitate to call us. Ed Clinton, Jr.

Park West Executive Services, Inc. v. Gallo Vitucci & Klar, LLP

2026 NY Slip Op 00428 | App. Div., 1st Dept. | Decided January 29, 2026

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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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In Julio Chicas v. Christopher J. Cassar, et al, No. 2023 NY Slip Op 00202, Appellate Division of the Supreme Court of New York, Second Department, the plaintiff sued for malpractice claiming that the lawyer defendants failed to sue a tortfeasor. The case was dismissed at the trial level, but the plaintiff successfully appealed. The reasoning:

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060). The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged herein, inter alia, that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him (see id. at 1060). The defendants failed to do so. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Comment: the court is saying there may have been a possible recovery against the tortfeasor who was not pursued. This may or may not be true. The litigation is in its early stages and we cannot predict whether or not the plaintiff can prove this claim. (If the possible tortfeasor was bankrupt or insolvent, there is no possible recovery.).

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We are often asked to evaluate potential malpractice claims. Here is what we need to know before we can take your case:

(a) What happened? How did things go bad? Why do you believe your lawyer was responsible? In your opinion what was the mistake of the lawyer?

(b) When did it happen? This is really important because the statute of limitations is usually two years from whenever you sustained damages from the alleged malpractice. The statute of limitations is complicated and can require extensive analysis. There are often no clear answers to this question.

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