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The Hierarchy of Attorney Malpractice

As might be expected, there is a hierarchy of attorney malpractice mistakes, and it closely mirrors those acts most easily recognizable by a lay person, for example a juror.

At the very head of the list is the failure to start an action, whether it comes as a result of failure to file a notice of claim pursuant to the General Municipal Law, The Public Authorities Law, the Court of Claims Act, or other claim-notice acts. That failure may come as a result of failing to file the summons and complaint, or failing to purchase an index number for the complaint and instead using the index number from the motion seeking have to file a late notice of claim. This group of "failing to file" the case is easily recognizable to the lay juror.

The next group consists of failures associated with the start of the suit, serving the wrong defendants, failing to obtain jurisdiction over the person, failing to serve an adequate complaint. The group also includes filing a complaint after the statute of limitations has run. These failures too are easily recognizable.

The third group arises from calendar control problems and failures to appear. These might come up on status conferences, clerk's calls, pre-trial or pre-calendar conferences, appearances in TAP or the Jury Coordinating Part, or any of the other numerous conferences. Cases marked off by the court, or dismissed by the court on a non-appearance or a motion decision based upon non-appearance fall within this group.

The fourth group arises from other calendar control problems not created by a failure to appear in court. Thus, a case marked off calendar by a party must be restored within one year. A default judgment must be taken within one year. An order must be settled on a motion decision within 60 days or the motion may be waived or deemed abandoned. A motion to renew or reargue must be made within 20 days, a motion to dismiss for lack of personal jurisdiction must be made within a short time period. A 90 day notice requires action within that time period or the case will be dismissed. A notice of appeal must be filed within 30 days of the service with notice of entry of the order. An appeal must be perfected within a certain time period, depending on the department.

The fifth group arises from the failure to proffer necessary documents. It is well known that the opponent to a summary judgment motion must offer admissible proof that a question of fact exists. The opponent of a motion to dismiss an auto case for lack of serious physical injury must offer the affidavit of a physician, and that affidavit must set forth some objective proofs of the injury. The proponent of a motion to restore a case marked off calendar must offer an affidavit of merits. A motion to vacate a dismissal must contain an affidavit of merits. A motion to vacate a default requires both a reasonable excuse for the default along with an affidavit stating a meritorious cause of action or defense. The simple failure to append these documents may constitute malpractice.

The sixth group arises from less well defined acts. These would include the failure to sue a specific individual, the failure to add certain claims to the complaint, the choice of witnesses, the choice of evidence to include on a motion or at trial, the failures of discovery, investigation questions at deposition, the choice of expert, the offer of proof at the trial. Stipulations entered into by the attorneys which bind the client might fall into this category. Deviation from good and accepted standards in these areas can lead to malpractice, but the question of a reasonable choice of strategy, supported by acceptable reasoning will not be held to constitute negligence. The choice, however, must be reasonable both objectively and subjectively.

The seventh group arises from attorney's wrongful acts of self-interest and conflict of interest. Representation of both parties in a divorce is dangerous, and becoming a partner with a client in a business is not permitted.

At the bottom of the list, but sadly familiar to potential malpractice plaintiffs are failures to communicate with the client. The failure to communicate gives rise to more inquiries by former clients than almost any other reason. Former clients invariably were motivated, sometimes strongly, by their subjective feelings of abandonment. Although this behavior itself rarely gives rise to a malpractice claim, and even more rarely to a meritorious claim, it does give rise to very strong emotion. It is also the most easily avoided.


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