Articles Posted in Appellate Malpractice

In 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.

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.

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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.

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.