Legal malpractice trials, which have always been kind of weird, just got weirder. In a case of first impression, the New York Court of Appeals in Grace v. Law recently held that the failure of a plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been “likely to succeed” in his appeal.
Say what? What does all this mean?
Let’s say your lawyer messed up your New York personal injury trial. He forgot to call a key witness. The jury found against you. You sue him. His defense? “Hey, maybe I should have called that witness, but if you had only appealed the trial result to the appellate court, maybe you would have won. We’ll never know because you never appealed. Therefore I win because you can’t prove the appellate court wouldn’t have given you a victory.”
Of course your argument would be, “wait a minute. I didn’t appeal because the appeal was a loser. Why should I waste my time and money on appeal that cannot succeed? I don’t have to appeal to be able to sue you for the screw up you made that cost me my case with the jury”.
So who’s right? The Court of Appeals now says you are both partially right. You are not barred from suing the lawyer just because you didn’t appeal the bad result. But the lawyer can defeat your claim if he convinces a new jury that you would “likely” (not absolutely positively, but only “likely”) have won on appeal if you had just bothered to take an appeal.
This puts the new jury – the one that will hear the malpractice case – in the weird position of having to guess what an appellate court would have done with the first jury’s verdict. How do you ask a jury to figure that out? The jury is comprised of regular folks — not lawyers or judges — and they are being asked to divine what five black-robed and judicially trained jurists would have done.
Now you know why I said that legal malpractice trials just got weirder.
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY Legal Malpractice Lawyers
Michaels & Smolak, P.C.