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In a legal malpractice case, the plaintiff must (almost always) present the testimony of a legal malpractice expert to opine on the standard of care. Experts can be expensive, but requiring an expert forces the plaintiff to hire one anyway. Without an expert on the standard of care, the case will be dismissed. In Vose v. Tang and Maravelis, PC, D. Rhode Island, the plaintiff argued that the jurors could rely on their common knowledge as a substitute for expert testimony. The court disagreed and dismissed the case.

To Mr. Vose’s first point, jurors could not merely rely on their common knowledge to determine whether Defendants committed malpractice. For example, Mr. Vose does not allege that Defendants failed to file a suit within the appropriate statute of limitations period or failed to inform him of a settlement offer—situations where negligence would be “clear and palpable.” Cronan, 972 A.2d at 173 (citations omitted). Rather, Mr. Vose’s malpractice allegations concern assertions that Defendants failed to: (1) impeach a witness; (2) call various witnesses; (3) present expert medical testimony; (4) file certain motions; (5) demonstrate adequate knowledge of the applicable law; (6) introduce evidence of impropriety by the police and others; (7) maintain his innocence; and (8) properly object to certain evidence. See ECF No. 94 at 4-34. These allegations implicate Defendants’ application of their legal expertise when representing Mr. Vose in his criminal matters. Accordingly, expert evidence is required to establish the standard of care applicable to an attorney in Attorney Goldberg’s position. See Focus Inv. Assocs., Inc., 992 F.2d at 1240 (affirming district court’s determination that expert testimony was required to establish the standard of care because the plaintiff’s legal malpractice claim implicated issues of the defendant-attorney’s application of legal expertise)….

Without expert testimony, Mr. Vose is unable make a showing sufficient to establish the appropriate standard of care—an essential element of his legal malpractice claims. Thus, the Court GRANTS Defendants’ Motion for Summary Judgment, ECF No. 89, and DENIES Mr. Vose’s Motion for Summary Judgment, ECF No. 75. The Court also DENIES Defendants’ Motion to Dismiss, ECF No. 79, as moot.

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DSC00771-300x225In the case captioned, Caminero v. MICHAEL FLYNN, Esq, PLLC, 2025 NY Slip Op 3701 (NY Appellate Division, 2nd Department 2025), the plaintiff sued his lawyer for legal malpractice arising out of an action under FELA, the Federal Employers’ Liability Act 45 USC §51. Caminero alleged that she was injured while working as a police officer for the Metropolitan Transit Authority. Plaintiff alleged that the law firm did not diligently prosecute the lawsuit. The Defendant law firm argued that plaintiff’s claims were barred under the doctrine of collateral estoppel. In New York a defendant can move for summary judgment if he can establish a prima facie case that he met the standard of care.

Collateral Estoppel bars a party from relitigating an issue that the party lost in a prior proceeding. New York defines it as: “‘The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494, 500 [emphasis omitted]; see Matter of Maione v. Zucker, 210 AD3d 776, 777). “`This doctrine applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the . . . party to be bound had a full and fair opportunity to litigate the issue in the earlier action'” (Matter of Maione v. Zucker, 210 AD3d at 777 [alteration and internal quotation marks omitted], quoting City of New York v. Welsbach Elec. Corp., 9 NY3d 124, 128).'”

The court rejected the collateral estoppel defense on the ground that the law firm did not prove that the issues determine in the two cases were identical: “Here, the defendants asserted that in light of the denial of an application by the plaintiff for accidental disability retirement benefits and the dismissal of the plaintiff’s proceeding pursuant to CPLR article 78 to review the denial of that application, the plaintiff was collaterally estopped from claiming that she suffered a work-related injury. Therefore, the defendants argued that the plaintiff could not establish that she would have prevailed in the FELA action but for the defendants’ alleged negligent failure to prosecute that action. Contrary to the defendants’ contention, however, the defendants failed to demonstrate an identity of issues between the FELA action and the determination of either the plaintiff’s application for accidental disability retirement benefits or the CPLR article 78 proceeding (see Weslowski v. Zugibe, 167 AD3d 972, 975). Whereas the FELA action involved the issue of whether the MTA’s alleged negligence played any part in producing the injuries for which the plaintiff sought damages (see Rogers v. Missouri Pacific R. Co., 352 US 500, 506; Grasso v. Long Is. R.R., 306 AD2d 378, 379), that issue was not litigated and necessarily decided against the plaintiff either in the context of her application for accidental disability retirement benefits or in the CPLR article 78 proceeding (see Kenny v. New York City Tr. Auth., 275 AD2d 639, 640). Thus, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel. The defendants also failed to establish, prima facie, that the MTA neither created nor had actual or constructive notice of the alleged dangerous conditions at issue in the FELA action (see Lauzon v. Stop & Shop Supermarket, 188 AD3d 856, 857; Ariza v. Number One Star Mgt. Corp., 170 AD3d 639, 639). Thus, the defendants failed to demonstrate, prima facie, that the plaintiff would not have prevailed in the FELA action but for their alleged failure to prosecute that action (see Detoni v. McMinkens, 147 AD3d 1018, 1020).

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DSC01488-300x200Don’t Sue The Other Party’s Lawyer

Unfortunately, one of the most common ways for a lawyer to be sued is by an opposing party. As a lawyer, you owe a duty to your client. You do not owe a duty to the opposing party. (There are duties to the Court and duties to comply with professional rules too, but those are not at involved here.) In my career I have been sued twice by opposing parties. Both cases were dismissed.

Cole v. Yanoff, 2025 IL App (1st) 241017-U is a new version of this old story. Yanoff represented a landlord who sued and sought to evict Cole. In the eviction case (the first case) Cole then sued Yanoff for breach of contract, intentional infliction of emotional distress. After he lost the eviction case, Cole filed another case (the second case) against Yanoff. The Circuit Court dismissed the second case on the grounds of the Absolute Litigation privilege and Cole appealed. The absolute litigation privilege prohibits a litigant from suing the other party’s lawyer if the cause of action arises out of the legal work the lawyer did.

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Lincoln-Park-3-300x225In the case of Neubauer v. Piercy, 2025 IL App (2d) 240357-U, the Illinois Appellate Court for the Second District affirmed the dismissal of a breach of fiduciary duty claim against a law firm on statute of limitations grounds. The court held that the two-year statute of limitations barred the claim because the plaintiffs knew or should have known of their injury more than two years before they filed suit. Plaintiffs sued the Defendant law firm for breach of fiduciary duty. Rodney Piercy founded Piercy & Associates, an estate planning law firm. In 2014, Rodney Piercy and his son, Matthew, formed an investment firm known as Family Wealthy Legacy. Matthew was principally responsible for managing the investments of the company. In 2018, plaintiffs invested $1.4 million in Family Wealth Management.  Plaintiffs were essentially alleging that Rodney breached his fiduciary duty to them by failing to disclose to them in 2018 that his son was likely a fraud and crook.

The opinion sets forth the facts as follows:

¶ 6 In July 2018, Matthew confessed to Rodney that he had misrepresented to investors how he managed their money. Matthew admitted that he had “`lost'” $21 million that he had gathered from investors. Matthew asked for Rodney’s help with his plan to recover the money, which involved selling the “algorithmic application” used by investors. Matthew also told Rodney that he was the subject of a criminal grand jury investigation led by the United States Attorney for the Eastern District of California. Rodney agreed to help Matthew and to act as legal liaison to Matthew’s criminal defense counsel. By the end of August 2018, Rodney concluded that the misappropriated monies would not be recovered through the sale of the algorithmic application.

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Crab eater seal

Crab eater seal

In Taylor v. Attorneys At Law, CAAP-22-000396 (unpublished), Hawaii Intermediate Court of Appeals, the court affirmed a grant of summary judgment to the defendant attorneys in a legal malpractice claim. Plaintiff retained them to prosecuted a wrongful death action arising out of the death of Taylor’s father. Defendants obtained a settlement of that case. Taylor sued and alleged legal malpractice. The Defendants moved for summary judgment. Because the defendants met their initial burden of production in their motion, summary judgment was granted. The quoted portion of the opinion demonstrates solid legal work by the Defendant attorneys and supports the decision to grant them summary judgment:

We conclude that the Defendants satisfied their initial burden on summary judgment through the declaration of Francis R. Alcain (Alcain), and the attached exhibits. Alcain, an attorney with Crudele & De Lima, represented that, pursuant to Taylor’s own instructions, Crudele & De Lima distributed the entirety of Taylor’s portion of the settlement award to Taylor’s daughter and sister in four disbursements,[2]

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tempImagekDYgzZ-225x300Lawyers sue for fees and clients file counterclaims for legal malpractice. In this unpublished Ohio case, Tarahfields, LLC v. White Law Office Co., 2025 Ohio 178. The law firm filed a collection case for the client and defeated a summary judgment motion and proceeded to trial. (The outcome of the trial is not reported). The client stopped paying and the firm sued for legal fees. The law firm won the case and client attempted to obtain relief from judgment. The Ohio Appellate Court affirmed an order rejecting the client’s effort to reopen the case and assert a malpractice claim. A link to the case is included below. Obviously, if you won the case, you can sue for legal fees.

https://scholar.google.com/scholar_case?case=12890448689908563905&q=legal+malpractice&hl=en&as_sdt=400006&as_ylo=2025

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DSC00836-300x225In Dodenc v. Dell & Dean, PLLC 2025 NY Slip Op 650, the Appellate Division ordered the dismissal of a legal malpractice claim filed by an unsuccessful plaintiff in a personal injury case. Dodenc alleged that she was unable to prove her case because of the negligence of the law firm. The lawyers moved to dismiss. They argued that she did not sustain a “serious injury” and that her personal injury case was without merit. This means that the firm is arguing against its former client. “You lost because your case wasn’t very good.”

Here is a short quotation from the opinion:

“A plaintiff seeking to recover damages for legal malpractice must establish that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (McGlynn v. Burns & Harris, Esq., 223 AD3d 733, 734-735 [internal quotation marks omitted]; see Nill v. Schneider, 173 AD3d 753, 755). “Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence” (Di Giacomo v. Michael S. Langella, P.C., 119 AD3d 636, 638; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 AD3d 955, 956). “To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied” (Schmidt v. Burner, 202 AD3d 1117, 1119; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 AD3d at 956).

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DSC00784-300x225The attorney judgment rule essentially provides a lawyer with a defense to a malpractice action where the lawyer made a judgment call among one of several reasonable alternatives. The classic example would be to recommend a client plead guilty to a crime or for a criminal defendant not to testify at trial. Either choice (plead guilty or go to trial) may be a reasonable decision and the lawyer should not be punished for choosing one alternative among several options. A baseball analogy would be the manager’s decision to intentionally walk the other team’s cleanup hitter or to pitch to the hitter. Either choice is reasonable. The manager may get burned with an intentional walk if the next batter gets a hit or badly burned if the next hitter hits a home run. On the other hand, after the intentional walk, the next hitter may ground into a double play and the inning may end. No one should second guess the manager because either decision was reasonable.

In the case of Springs v. L&D Law PC, 2025 NY Slip Op 32, Springs sued his lawyers alleging that they committed malpractice by failing to properly amend his complaint in an underlying retaliatory discharge action, which was dismissed. The lawyer defended on the ground that he made a reasonable choice to amend the complaint in response to a motion to dismiss, which was ultimately unsuccessful. The court rejected the application of the attorney judgment defense for these reasons:

“Supreme Court correctly declined to find that the professional judgment rule protected defendants from liability. Pursuant to the professional judgment rule, an attorney’s “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v. Paley, 65 NY2d 736, 738 [1985]). Defendants maintain that their decision to amend the complaint in an attempt to moot the 2019 motion to dismiss instead of opposing the motion on its merits was a reasonable strategic choice that is protected by the professional judgment rule. However, plaintiff’s allegations are that defendants failed to submit a memorandum of law in opposition to the motion to dismiss and instead filed a deficient amended complaint that failed to state that there was a causal connection between plaintiff’s decision to file an EEOC complaint and the 2017 Action and the adverse treatment he suffered. At this juncture, the professional judgment rule is not available as a defense because the record does not allow us to make a determination that defendants’ course of conduct was reasonable as a matter of law (see Escape Airports [USA], Inc. v. Kent, Beatty & Gordon, LLP, 79 AD3d 437, 439 [1st Dept 2010]). Absent a finding that the attorney’s courses of conduct were reasonable as a matter of a law, a determination that a course of conduct constitutes malpractice requires findings of fact (see Bernstein v. Oppenheim & Co., 160 AD2d 428, 430[1st Dept 1990]).”

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Chicago-River-Bridges-225x300A limited liability company (LLC) is a distinct entity and the lawyer for the LLC does not represent the members, absent evidence to the contrary, such as an engagement letter. Cafe Holdings, Inc. v. Burke, Warren, Mackay & Serritella, 2024 IL App (1st) 230091 discusses this case and holds that the lawyer for the LLC does not represent the members and had no duty to the members. Thus, Cafe Holdings lawsuit against the lawyers for the LLC was dismissed. The dismissal was affirmed by the Appellate Court. The reasoning:

¶ 28 From what we can discern, on appeal, CHI does not address the first issue. CHI raises two arguments in its appellate brief. The first is that dismissal was premature in that questions of fact remain regarding the circumstances surrounding the settlement agreement and the assignment of the legal malpractice claim. Its second argument is that public policy, under the Learning Curve test, favors assignability here. In neither argument does CHI claim to have an attorney-client relationship with the Silver defendants. And as we review the pleadings below, CHI did not assert an attorney-client relationship between itself and the Sliver defendants before the circuit court, either.

¶ 29 CHI, in other words, does not challenge the trial court’s first ruling that the Silver defendants did not owe a legal duty to CHI, as CHI was not their client, and thus a legal malpractice brought cannot ordinarily lie. See Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005) (among other things, claim for legal malpractice must establish duty arising from attorney-client relationship). And CHI did not raise that argument below, either. So any such argument is forfeited twice over. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in appellate brief are forfeited); Hebert v. Cunningham, 2018 IL App (1st) 172135, ¶ 37 (argument not raised by appellant in circuit court is forfeited on appeal).

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Chicago-River-2-225x300In Stogis v. Miller, 2024 Il App (1st) 230379 the Illinois Appellate Court affirmed the dismissal of a legal malpractice lawsuit. The lawsuit was dismissed by the trial court on two grounds, the statute of limitations had expired and that there was no attorney client relationship between the lawyer and the plaintiff. Because the plaintiff did not obtain a transcript of the proceedings and the record did not reflect why the case was dismissed, the court held that the dismissal was proper. The explanation: “¶ 16 Since the record on appeal does not contain a properly bound and certified transcript of the hearing on defendants’ motion to dismiss, we cannot determine whether the trial court erred in granting defendants’ motion. We are therefore compelled to affirm the judgment of the trial court. See Foutch, 99 Ill. 2d at 392. Consequently, we must reject plaintiff’s contention of error.”

Should you have a question about a legal malpractice case or appeal, please contact us. Do not try to do an appeal without the record of proceedings from the trial court. It won’t work.

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