NY: Does the "But For" Burden Reward Negligent Lawyering?
Aquino v. Kuczinski, Vila & Associates, P.C. 39 A.D.3d 216, 835 N.Y.S.2d 16 (A.D.1st Dpt. 2007)
Student Contributor: Maninder (Meena) Saini
NY Underlying personal injury action
Facts: On July 4, 2002, plaintiff-client slipped and fell in the lobby of a casino that caused back injuries. On July 9, 2002, plaintiff retained an attorney to represent her in this matter. The attorney wrote letters to the casino on two separate occasions, advising them of the plaintiff’s claim and requesting insurance information and surveillance footage. The casino failed to send the requested information. In July 2004, the plaintiff contacted the attorney where he told her no action was commenced and the two-year statute of limitations had expired. Plaintiff then brought a lawyer malpractice action against the attorney and law firm alleging the failure to investigate plaintiff’s case and to timely commence an action.
Issue: Did the plaintiff show that “but for” the negligence of the attorney she would have prevailed in the litigation?
Ruling:: The Appellate Court held that plaintiff failed to show she would have succeeded on the merits of the case “but for” the attorney’s negligence. Specifically, the court stated that “[d]efendants' negligence in failing to investigate plaintiff's case and timely commencing an action does not relieve plaintiff of her burden of proving that she would have prevailed in that litigation but for defendants' negligence”.
In order for a plaintiff to succeed on a lawyer malpractice claim, a plaintiff must plead and prove a prima facie case of legal malpractice. The proximate cause element of he cause of action requires that she demonstrate that she would have succeeded on the merits of the underlying claim “but for” the attorney's negligence.
Lesson: Even though the attorney was negligent in failing to investigate the plaintiff’s case and timely commence an action, the plaintiff failed to prevail because she could not demonstrate a "but for" causation utilizing the "trial within a trial" method of proof.
I think this ruling is unfair to the plaintiff in this case. The plaintiff has no way to show that she definitely would have won if the case had actually commenced, and she therefore cannot win the current malpractice either! Her hands are "tied behind her back" without any recourse.
I agree with the holding in this case. I believe that an attorney should not be liable for legal malpractice if the client is unable to prove the "but for" causation element. Recovering in a legal malpractice action is about compensating the injured. If there are no injuries, there is nothing to compensate.
This case is evidence that the proximate cause requirement remains extremely important when attempting to prove a legal malpractice claim. The attorney in this case was definitely negligent, but without "but-for" causation, the plaintiff could not prevail. Although the attorney's negligence was ultimately excused in this case, it seems reasonable to do so because if the attorney was not the cause of plaintiff's damages, he/she should not be held liable. However, it is unfortunate that an attorney can get away with this behavior but it is likely that it will catch up to them one day if future plaintiffs are able to prove the but-for requirement.
This is another one of those catch 22 situations, the defendant was clearly negligent but he lucked out based on some intervening factors that took the blame away from him. It's hard to agree with a holding in this case either way because completely good and logical arguments can be made on both sides.
This ruling is not especially unfair to the plaintiff, although I do sympathize with her because of her attorney's clear negligence. However, sympathy aside, the plaintiff has to make a showing that the Attorney caused her damages. If she does not, she cannot prevail. While the Attorney may have made such a showing harder, the attorney's acts likely did not make it impossible for the plaintiff to fulfill the requirements of the case within a case method.