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Articles Posted in Appeals

cropped-183x300My 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.

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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.

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