Legal Malpractice

Arbitration and Legal Malpractice

By (Andrew Lavoott Bluestone)

Arbitration and legal malpractice form an uneasy fit.  One reason is that discovery is limited; another is that the case is decided by a panel of attorneys.  While in many ways a panel of "wise men" may be preferable, in legal malpractice plaintiff will generally prefer a jury.

Juries trend towards a less highly technical view of departures and damages than do a panel of attorneys.  As an example, the case of Kaminsky v Herrick, Feinstein LLP , 2008 NY Slip Op 09934 ,Decided on December 18, 2008 ,Appellate Division, First Department  provides an example.
 

Plaintiff offered evidence of $ 3.25 million damages, and eventually won about $ 300,000.  Plaintiff's claim was that his attorneys failed to offer testimony about the share value of the case and failed to offer an expert on the direct arbitration case, relying on a rebuttal witness, which the arbitrators did not heed.

In the Appellate Division, plaintiff lost. "In this action for legal malpractice, plaintiff claims that his attorneys' failure to offer [*2]sufficient expert testimony concerning the valuation of his damages resulted in an inadequate arbitration award. However, plaintiff fails to offer any viable legal basis upon which the arbitration panel could have reached a substantially different result. Thus, plaintiff cannot establish that the outcome of the proceedings would have been more favorable but for defendants' asserted failure to present evidence, and the complaint must be dismissed. "

Full post as published by New York Attorney Malpractice Blog on December 31, 1969 (boomark / email).