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.
The problem, addressed on this appeal, is that the client did not come to us with this case until more than three years after the loan had become due and the borrower was in default. The client continued to have the same lawyers represent him during and after the foreclosure. The defendant made a motion early on (CPLR 3211) to dismiss the malpractice claims regarding the “loan transaction” portion of our case because, according to them, as a matter of law, we sued too late. The three-year statute of limitations for the “loan transaction” malpractice had run out, according to them, three years after the loan became due. They argued that the “loan transaction work” (all the legal services before the default) was a “separate matter” from the “loan foreclosure” work which followed the default.
Under legal malpractice law, the normal three-year statute of limitations, which starts running on the date of the malpractice, is “tolled”, i.e., does not start to run, until the lawyers stop working for the client on “the same matter”. The issue then becomes, what is “the same matter”? Here, we are arguing that all the representation the lawyers provided to our client from beginning to end were “on the same matter”, that “matter” being the $6,000,000 loan to the power company. Defendants are arguing that, after the borrower defaulted on the loan, one “matter” (the loan transaction) ended and a new and separate “matter” (the foreclosure action) started. If defendants are right, I lose the appeal. But if I am right, I win, and we can prosecute all the legal malpractice claims, not just the malpractice claims stemming from the foreclosure action.
Do I think I will win? Yes. I have a good feeling about it. Plus, I won my last appeal on the same legal issue – called “continuous representation”. You can read the result of that case here. Maybe I am on a roll?
How do I prepare for oral argument of an appeal? The Briefs are already submitted, so I have already thoroughly argued my points to the Court in writing. One of the tough things about preparing the oral argument is that you don’t want to just repeat what you said in the brief. You want to take the issues on from a different angle, think of a new metaphor or analogy to hang your argument on, or perhaps discuss a very recent case that supports your arguments that was not yet published when you submitted the Brief.
But one of the main things about oral argument is that I can’t just stand there and make a speech. No, the judges (there will be five of them) will let me speak for a minute or two before they start pummeling me with questions, some of which may seem hostile to my position. They are trying to look for the holes in my argument, and test my positions against the facts in the record and hypothetical situations.
How do I prepare for questions I don’t know they are going to ask me? I get fully familiar with the Record on Appeal, that is, all the papers and documents that were submitted to the Court as “evidence”. You also have to be on top of all the current case law regarding the issue at hand – here “continuous representation” for tolling the legal malpractice statute of limitations. And finally you have to think about what they might want to ask you. But there are always surprises no matter how much you prepare! You have to be quick on your feet.
I think I’m ready. I will continue to prepare, just to be safe. If this topic interests you, you can watch me argue the case live on this site: ad4.nycourts.gov/go/live. It’s case number 531, called Roseman v. Lippes Mathias Wexler Friedman, LLP. You can also watch it later on. Arguments are now videotaped and posted on the Court’s website. Wish me luck!
Email me at: email@example.com I’d love to hear from you!
Syracuse NY Legal Malpractice Lawyers
Michaels Bersani Kalabanka