Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

Category Archives: But for-Proximate Cause

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NY: Actual Knowledge of Ongoing Hazardous Conditions Constitutes Constructive Notice for Each Recurring Incident

Posted in But for-Proximate Cause, New York, Torts/Personal Injury
Lowe v. Spada, 282 A.D. 2d 815 (N.Y. 3rd Dept. 2001) NY: Tort Law Student Contributor: Adam Gardin Facts: Plaintiff commenced an action against defendants for failing to timely commence a personal injury action against the maintenance company responsible for cleaning the bathroom where she suffered a slip-and-fall. Defendants claimed that plaintiff would not have… Continue Reading

NY: Actual Knowledge of Ongoing Hazardous Conditions Constitutes Constructive Notice for Each Recurring Incident

Posted in But for-Proximate Cause, New York, Torts/Personal Injury
Lowe v. Spada, 282 A.D. 2d 815 (N.Y. 3rd Dept. 2001) NY: Personal injury. Premises liability Student Contributor: Adam Gardin Facts: Plaintiff commenced an action against defendants for failing to timely commence a personal injury action against the maintenance company responsible for cleaning the premises where she suffered a slip-and-fall. Defendants claimed that plaintiff would… Continue Reading

IL: Net Opinion on Causation Results in Dismissal

Posted in But for-Proximate Cause, Expert Witnesses, Illinois, Proximate Cause
Bourke v. Conger, US Ct. of Appels, 7th Circ., April 19, 2011.  Facts: Bourke was convicted of murder in Illinois state court, and after the conviction was turned over on appeal, filed malpractice claims against his defense attorneys. Bourker alleged that defense counsel’s voire dire of the jury fell below acceptable standards of care. Bourke’s… Continue Reading

WY: Establishing Proximate Cause

Posted in But for-Proximate Cause, Proximate Cause, Substantial Factor-Proximate Cause, Wyoming
Rivers v. Moore, Myers & Garland, LLC, Supreme Court of Wyoming, Appellate Division, July 28, 2010. Facts: Rivers alleged that the Defendants committed malpractice by failing to adequately warn him of the subject property’s development restrictions, and by delaying in taking action on his behalf to address those development issues. The trial court granted summary judgment… Continue Reading

NJ: Settle and Sue Continued, Puder Rejected

Posted in But for-Proximate Cause, Conflicts of Interest, Damages, New Jersey, Proximate Cause, Rules of Professional Conduct (RPCs), Standard of Care, Substantial Factor-Proximate Cause
Gorjuice Wrap, Inc. v. Okin, Hollander & De Luca, LLP, N.J. App. Div., January 12, 2011 (Unpub.) Facts:  Kang retained Attorney Watkins to assist her in negotiating a commercial lease with the Talmos.  Unbeknownst to Kang, Watkins had been a longtime attorney for the Talmos.  In fact, he had represented them in their purchase of… Continue Reading

MD: “Case within a Case,” the Golden Test for Proximate Cause

Posted in But for-Proximate Cause, Case Within a Case, Maryland, Proximate Cause, Substantial Factor-Proximate Cause
Suder v. Whiteford, Taylor & Peston, LLP, Court of Appeals of Maryland, April 9, 2010.  Facts:  Suder filed an action for legal malpractice against her former attorneys, alleging failure to timely file a request for a fifth extension which, ostensibly, caused her to receive approximately $270,000 less under a will than she otherwise would have.  The… Continue Reading

AL: “Blatant Error” Excused in Absence of Causation and Damages

Posted in Affidavit/Certificate of Merit, Alabama, But for-Proximate Cause, Case Within a Case, Damages, Duties: Communicate, Expert Witnesses, Substantial Factor-Proximate Cause
Guyton v. Hunt, Court of Civil Appeals of Alabama, July 23, 2010. Facts:  Guyton was convicted of sexually abusing a minor.  After his conviction, he retained Hunt to prepare and file a motion for new trial, and if that was denied, file an appeal.  Hunt’s motion for a new trial was denied, but he never advised… Continue Reading

NY: No Damage? No Recovery.

Posted in But for-Proximate Cause, Damages, Defenses, New York, Real Estate
Vlahakis v.Mendelson & Associates, 54 A.D.3d 670, 863 N.Y.S.2d 479 (App. Div. 2d Dep’t 2008). NY: Underlying bankruptcy proceeding Student contributor: Nicole Milone Facts: John Vlahakis retained Mendelson & Associates to advise him in his bankruptcy proceeding. The attorneys assured their client that he would not have to pay the arrears he owed on his… Continue Reading

NY: Proximate Cause? Does the Attorney’s Negligence Make a Difference in the Underlying Case?

Posted in But for-Proximate Cause, Case Within a Case, Insurance, Litigation, New York
Schorsch v. Moses & Singer LLP, 60 A.D.3D 557, 876 N.Y.S.2d 367 App. Div. 1st Dep’t 2009). NY: Underlying insurance claim Student Contributor: Nicole Milone Facts: M.R.S. Antiques was a family-owned business that sold art and antiques. The business was run by Margaret Schorsch, her brother David Schorsch, their mother Marjorie Schorsch, and two other… Continue Reading

NY: Disciplinary Violations Without More Don’t Add up to “But For” Causation

Posted in But for-Proximate Cause, Commercial, New York, Rules of Professional Conduct (RPCs)
Nason v. Fisher, 36 A.D.3d 486; 828 N.Y.S.2d 51 (2007) NY: Underlying Commercial Transaction Student Contributor: Colleen Gaedcke Facts: The plaintiff retained the defendant attorneys based on one of the defendant attorneys representation that he was experienced in handling commercial partnership cases. The plaintiff brought a cause of action against the defendant for false representation… Continue Reading

NY But for: Shifting the Burden to Defendant

Posted in But for-Proximate Cause, Litigation, New York, Torts/Personal Injury
Gamer v. Ross, 2008 NY Slip Op. 2107 (App Div. 2d Dept) NY: Underlying personal injury action; missing discovery causes summary judgment dismissing complain Student Contributor: Josh Aronson Facts: In the underlying case, the plaintiff was injured when he tripped and fell over wires and debris while roller skating on a public sidewalk adjacent to a… Continue Reading

NY: The Delicate Balance Between Proximate Cause and Collateral Estoppel

Posted in But for-Proximate Cause, New York, Proximate Cause, Torts/Personal Injury
Pechko v. Gendelman,  20 A.D.3d 404; 799 N.Y.S.2d 80 (2nd Dept. 2005) NY Underlying Medical Malpractice Action Student Contributor: Natalie Resto Facts: The plaintiff underwent a mammogram while a patient with Doctor #1, who, she claimed, told her that the mammogram was normal. Later that year she underwent a mammogram with Doctor #2 and was… Continue Reading

TX: Expert Testimony Necessary to Establish Proximate Cause

Posted in But for-Proximate Cause, Commercial, Expert Witnesses, Proximate Cause, Texas
Primis Corp. v. Milledge, Court of Appeals of Texas, Fourteenth District, Houston, May 27, 2010 Facts:  Defendants agreed to represent the plaintiffs in a certain lawsuit and plaintiffs paid the defendants a $5,000 retainer.  Plaintiffs contend the retainer was a "general retainer", while Defendants contend the retainer was specifically for the work to be performed… Continue Reading

NY: Case Within the Case: The Great Excuser for Lawyer Carelessness?

Posted in But for-Proximate Cause, Case Within a Case, New York, Torts/Personal Injury
Yousian v. Eisenberg, 34 A.D.3d 228 (2006) NY Underlying Medical Malpractice Action Student Contributor: Ally Shuster Facts: Plaintiff went to hospital complaining of gastrointestinal pain. Over the next few months, Plaintiff underwent a series of tests in order to diagnose his condition. He underwent a sonogram, the results of which showed that he had stones… Continue Reading

But For: Same in Transactional and Litigation Malpractice

Posted in But for-Proximate Cause, California, Case Within a Case, Commercial
Michael Viner et al. v. Charles A. Sweet et al. 30 Cal. 4th 1232 (Cal. 2003) CA Underlying corporate transaction Student Contributor: Evan Michael Hess Facts: Plaintiffs retained Defendant and his law firm for a corporate transaction. After negotiating an employment termination agreement, the Plaintiffs brought a legal malpractice suit alleging seven claims, encompassing and array… Continue Reading

Breach of Fiduciary Duty and a Lighter Burden of Proof: The Prophylactic Rule

Posted in But for-Proximate Cause, Commercial, Federal, Fiduciary Duty, New York, Proximate Cause
Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537 (2nd Cir. 1994) NY Underlying Representation: Prospective Purchase of Bankrupt Company’s Assets Student Contributor: John Anzalone Facts: Defendant Law firm represented Plaintiff through an agent in her attempt to purchase the assets of a bankrupt company. Problems occurred with the deal and the Agent was… Continue Reading

NY: But For my Lawyer’s Negligence at Trial, I Would Have Settled…

Posted in But for-Proximate Cause, Litigation, New York, Wills Trusts & Estates
Leder v. Spiegel 9 N.Y.3d 836, 872 N.E.2d 1194 (2007) NY: Underlying Will Contest Student Contributor: Ryan O’Donnell Facts: Defendant represented plaintiff in an underlying probate matter. Rather than accept a settlement offer, plaintiff decided to continue to trial, where they were unsuccessful in challenging the will. The plaintiff bases his malpractice claim on defendant’s… Continue Reading

NY: But For my Lawyer’s Negligence at Trial, I Would Have Settled Before…

Posted in But for-Proximate Cause, New York, Wills Trusts & Estates
Leder v. Spiegel, 9 N.Y.3d 836, 840 N.Y.S.2d 888 ( 2007) Student Contributor: Maninder (Meena) Saini NY Underlying will contest Facts: Plaintiff (attorney) unsuccessfully represented defendants (clients) in a will proceeding and the defendants refused to compensate the plaintiff for the work done on their behalf. The plaintiff then petitioned for legal fees. The defendants… Continue Reading

NY: Does the “But For” Burden Reward Negligent Lawyering?

Posted in But for-Proximate Cause
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… Continue Reading

The Hidden Issue in Akin Gump v NDR

Posted in Attorneys Fees, But for-Proximate Cause, Insight & Commentary, Texas
The Texas Supreme Court’s new opinion (October 30, 2009) in Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corporation  holds that “collectibility” must be determined no earlier than the time of the underlying judgment, and “a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the… Continue Reading

Akin Gump v NDR – Practical Consequences of Allowing Attorneys’ Fees as Damages

Posted in Attorneys Fees, But for-Proximate Cause, Damages, Insight & Commentary, Litigation, Texas
The Texas Supreme Court’s new opinion in Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corporation holds that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence. Prior to this holding, Texas courts… Continue Reading
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