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Settlement Regret Is Not Sufficient To Establish Legal Malpractice

In Bei Yang v. Pagan Law Firm, PC, 2022 NY Slip Op 31007(U) Supreme Court, New York County, the plaintiff hired the lawyer for a medical malpractice case. That case settled for $1.3 million. Plaintiff then sued the lawyer for legal malpractice. Plaintiff alleged that the lawyer coerced him into accepting the settlement. The court dismissed the legal malpractice action because the plaintiff could not prove he would have recovered more than $1.3 million had he gone to trial.

The reasoning:

“Plaintiff’s own expert does not dispute Mr. Zuller’s opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:

As such, the issue is not whether the settlement was adequate or reasonable, a fair amount or not, but simply whether the client’s assent was properly obtained. Whether accepting the offer was wise or foolish, and whether the settlement amount is fair or not, is entirely besides the point. In this case, the client’s consent was not voluntarily or freely given. Her assent was only obtained “under the gun.”


Predictably, the defense contends that the settlement amount herein was very favorable to the plaintiff, perhaps more than would be recovered at trial, and certainly more than if the trial went badly. All of that may be true, but all of that is totally irrelevant, nonetheless. The wisdom of the client’s choice is not the legal test that matters herein. All that matters is whether the consent to settle was freely given. If freely given, the settlement is valid and binding, regardless of the amount. If not freely given, the settlement was improperly obtained, regardless of the amount. (Emphasis added).

While the issue of whether plaintiff would have received a greater amount of money if she went to trial may be “irrelevant” to ethical considerations, it is not irrelevant to the pending malpractice claim. The concession of Plaintiff’s own expert that it is possible that Plaintiff would not have recovered more money or even that Plaintiff may have recovered less money if she proceeded to trial, underscores that Plaintiff will be unable at trial to establish that but for the settlement a trial would have resulted in a verdict in excess of 1.3 million dollars. [See eg Gallet, Dreyer & Berkey, LLP v. Basile, 141 A.D.3d 405 (2016)(holding summary judgment dismissing the legal malpractice claim appropriately granted where the asserted damages are vague, unclear, or speculative); Bellinson Law, LLC v Iannucci, 102 AD3d 563 (1st Dept 2013)].”

Comment: settlement regret cases are difficult to win precisely because the outcome of a trial is uncertain. It is unfortunate that this excellent opinion was not published as these issues arise quite often. The court correctly distinguished cases where the lawyer made an error in the underlying case that reduced settlement value, such as where a lawyer failed to get the proper expert witness to testify or where a lawyer missed a deadline.

Ed Clinton, Jr.

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