Introduction
Legal malpractice occurs when an attorney breaches their duty of care, resulting in harm to their client’s interests. Proving legal malpractice in New York State requires establishing four essential elements, each of which must be meticulously supported by evidence and legal expertise. This article will outline the steps and considerations necessary to navigate the complex process of proving legal malpractice in the Empire State.
It’s been quite a while since this Central New York Injury Law blogger has posted anything. In fact, almost a year. It was a busy year and blogging gave way to serving our clients’ pressing needs, always our number 1 priority. But to quote Arnold Schwarzenegger (sort of), “we’re back!” And with lots of news:
News Item Number 1: “Michaels & Smolak” is no longer (sigh). Jan Smolak, one of our four lawyers, left the firm to go join his lawyer-wife’s practice, Perotto Law, in Rochester, New York. We wish Jan luck!
News Item Number 2: The other three “Michaels & Smolak” lawyers, Lee Michaels, Mike Bersani, and Dave Kalabanka. have remained right here in the same office in Auburn New York, but are now operating under the name “Michaels Bersani Kalabanka, P.C.”. Yeah, I know, that’s quite a mouthful, which is why we prefer to call ourselves “MBK Law”. Our new website is MBK-LAW.com
Hello there blog readers! This is Dave Kalabanka, Mike Bersani’s partner. I’ve hijacked his blog for today to interview Mike about another important award he just got: Mike has been selected the 2022 “Lawyer of the Year” for the Syracuse metropolitan area in the field of “professional malpractice” for his outstanding representation of victims of legal or other professional malpractice. A publication called “Best Lawyers in America” bestows this honor on the lawyer with the highest overall positive peer-feedback (judges and other lawyers rate him higher than any other lawyer) for a specific practice area and geographic region. Yes, Mike was the highest ranking attorney in the field of representing victims of legal and other professional malpractice for the entire Syracuse Metropolitan area.
This new honor comes on the heels of Mike’s being named the 2021 “lawyer of the year” for the Syracuse Metropolitan area in the field of representing personal injury plaintiffs.
Given his second-year-in-a-row “Best Lawyer” designation, I decided to take some time from Mike’s busy schedule to interview him:
I am arguing an appeal tomorrow. I am writing this blog post during a “break” in my preparation. Let me tell you about the appeal, and how I am preparing to argue it.
First, it’s a big case. We have sued for more than $8,000,000. Our client is a wealthy trust fund that lent $6,000,0000 to a power company. The loan went sour when the power company went broke and was unable to repay the loan. The lawyers representing our client for the loan transaction, whom we have sued, then had to file a foreclosure action to try to salvage whatever they could from the loan-gone-bad.
We allege that the lawyers committed malpractice in failing to conduct “due diligence” to ensure that the borrower would be solvent and able to repay the loan, and then continued to malpractice our client during the foreclosure proceedings, which cost our client another $2,000,000 or so in attempting futile efforts to stymie the losses.
My law firm is one of the few – if not the only – law firm in the Syracuse area whose case load includes a significant amount of legal malpractice cases. Unlike some firms, we are not afraid to sue our colleagues when they “mess up”. Here I am going to talk about an important legal malpractice statute-of-limitations issue that we have been arguing.
Two times recently, in two different courts, our clients’ legal malpractice lawsuits were dismissed by a trial judge because they were sued after the three-year legal malpractice statute of limitations had run. In both cases, we argued that a “toll” should be applied to extend the normal three-year statute of limitations based on a legal concept known as the “continuous representation doctrine”.
What’s the continuous representation doctrine? Basically it says that the statute of limitations clock gets “tolled” – does not start to run – until the lawyer finishes representing the client on the same matter in which he malpracticed the client. So, for example, if your lawyer forgets to enter critical evidence at your trial, the three-year clock won’t start to run – it will be tolled — until he has finished trying your case, making any post-trial motions, and taking any appeals. This could be many years after the original mistake. Whenever he is completely done representing you “in that same matter” that he malpracticed you, the three-year statute of limitations for suing him begins to run.
Even though I write all the appellate briefs and argue all the appeals for my office, and even though I have been blogging about New York personal injury issues for almost a decade, and even though I spent two years clerking for an appellate court (Fourth Department in Rochester) before I began representing personal injury victims, I just realized I have never blogged about the process of arguing an appeal. It’s time!
I’m not going to talk about writing the brief: That’s way too technical and boring for this blog spot. I’ll address the actual oral argument.
By the time we get to oral argument, both sides have researched all the law and how it applies to the facts of the case. Both sides have made all their arguments in writing – in the “Briefs”. The Appellant fires the first salvo with an Appellate Brief arguing for a reversal or modification of the lower court’s order or judgment. The “Respondent”, who won in the court below and wants an “affirmance”, then files its Responding Brief to try to undermine the arguments in the Appellant’s Brief. The Appellant gets to fire the last shot with a Reply Brief, which tries to poke holes in the Responding Brief.
Here at Michaels Bersani Kalabanka, on any given day, you are likely to find, on our attorneys’ desks, piles of dog-eared, highlighted, and marked-up volumes of the New York Jury Verdict Reporter. The Reporter summarizes jury verdicts on a weekly basis from around New York State. (Actually, this publication is now called “VerdictSearch“, but old-timers like me, and most New York personal injury lawyers, still call it the “Jury Verdict Reporter“.)
Why do we read it? To help us represent YOU in YOUR CASE. True, every case is different, including yours, so the New York Jury Verdict Reporter provides only limited guidance. Every case, including yours, has a unique set of facts, lawyers, and jury members. All of these variables can and do affect the result of a case. Therefore, in one sense, the result of a single case reported in the Jury Verdict Reporter literally tells us nothing about how your case will end up.
But if you keep reading the jury verdict reports week after week, as we do, certain patterns emerge that are very helpful to both predicting the result of, and guiding our handling of, your case. Here are five main lessons that come out of the jury verdict reporter:
We lawyers at Michaels Bersani Kalabanka have been around the block a few times. Collectively the four of us have clocked in over 100 years of experience as New York personal injury lawyers. But even after all those years, we’ve never been sued — not even once — for legal malpractice. Not that it couldn’t happen; anyone can make a mistake. Maybe we’ve just been lucky. But we do believe we have excellent systems in place to avoid committing malpractice.
Many of our peers have not been so lucky or so organized. We often read cases where our brethren NY personal injury lawyers have been successfully sued for legal malpractice. We also sue some of those lawyers for legal malpractice on behalf of their (ex-)clients. Based on all this experience, we believe we have inventoried the most common errors NY personal injury lawyers make. Fellow New York personal injury lawyers, take note:
1. Failing to file a claim within the limitation period. We call this “blowing the SOL” (statute of limitations). This is by far the most common form of legal malpractice committed by New York personal injury attorneys. If you fail to timely file the claim, it is malpractice as a matter of law. The client will get an automatic judgment against you on negligence (though he or she will still have to prove causation, i.e., that the claim would have been successful if timely filed.) Why is this missing the SOL so common? It should not be. The very first thing a lawyer should do when he takes in a new case is diary, in several places, including in a computer tickler system, the time limitations for filing suit. One reason some lawyers miss the SOL is that they do not properly diary it in several places (computer, paralegal diary, etc.). In our office the lawyers meet twice a month to make sure we have diaried all new cases correctly, in all the right places. We also systematically review each case when there is one-year left on the SOL, and again when there is only six-months remaining on the SOL. Another cause of missing a filing deadline is when the lawyer diaries the wrong statute of limitations, either because he miscalculated or misunderstood the statute of limitations. This is an easy mistake for the inexperience personal injury lawyer to make because, while the SOL for negligence claims is generally is 3 years in New York, it can be as short as one year (for suing a sheriff), or a year and 90 days (for suing a municipality) or two years (for wrongful death claims). Some lawyers just assume the SOL is 3 years without carefully considering or researching the multiple variations that are possible. You either have to know this stuff by heart (as we do) or look it up!
Yet another study, reported yesterday in the New York Times, indicates that so called “defensive medicine” — ordering extra tests and performing extra procedures in an attempt to avoid getting sued for malpractice — doesn’t reduce the number of lawsuits. What does drastically reduce medical malpractice claims (besides being a careful and good doctor) is being a GOOD COMMUNICATOR with the patient. That’s because patients rarely sue doctors they like, who treat them with kindness, and who listen to them. Doctors who are liked – because they connect well with the patient — can make mistakes that will often be forgiven. But the same patient wouldn’t think twice about slapping a lawsuit on a cold, distant, non-listening doctor.
I have not seen any similar studies for the legal profession, but it would make perfect sense that lawyers who communicate well with their clients are less likely to get sued. So, fellow lawyers, treat your clients right, listen to them, take the time to explain things to them, joke with them – in sum, win their love! That’s the best malpractice insurance you can buy – and it’s free!
Keep safe!
New York State has a new rule — §202.5[e] of the Uniform Civil Rules of the Supreme and County Courts — requiring attorneys to omit or redact “confidential personal information” from court-filed papers. The “confidential personal information” includes social security numbers (except the last four digits), the dates of birth (except for the year), the full name of a minor (except for the minor’s initials), and financial account numbers (except the last four digits). Compliance with the new rule is voluntary until Feb. 28, 2015 at which point it becomes mandatory.
Why this new rule? Identity theft, a growing problem. Identity thieves might conceivable go to the Courthouse or County Clerk’s office to peruse publicly available litigation papers in search of enough personal identifying information to get a hold of bank accounts, etc. Further, court-filed papers are soon going online, which will make identity theft even easier.
This new rule makes perfect sense. New York personal injury lawyers like me often file in courthouses and county clerk offices “motions” attaching “pleadings” and deposition transcripts, which traditionally contained private identifying information (client’s date of birth, ss number, etc). At Michaels Bersani Kalabanka we have been proactive in protecting our clients’ personal information. For several years now we have refused to disclose our clients’ social security numbers in any “pleadings” or other publicly filed documents. When we are required to disclose such information to our opponents, we do so “off the record” so that the information won’t inadvertently show up in any public filings.
Central New York Injury Lawyer Blog