Legal Malpractice

3 Lessons from this Legal Malpractice Case

By (Andrew Lavoott Bluestone)

The recently decided DeLuca v. Goldberger provides several interesting lessons in legal malpractice.  The first is that attorneys who take on cases and then tell the client shortly before the statute of limitations runs, or shortly before a case must be restored, or shortly before some other deadline fact a legal malpractice problem.  Here plaintiff claimed that the attorneys did not give him enough time to find new representation to restore the case to the calendar prior to dismissal.

The second lesson is that an attorney must comply with CPLR 321[b].  The court  warned: "May the herein decision serve as a cautionary tale to the bar as to the importance of following the strictures of that subsection."

The third lesson is also found in a footnote.  Routinely, there are differences between deposition testimony and later affidavit testimony, as the respondent modifies and adapts to a changing landscape, offering wither widely or slightly divergent explanations.  The lesson is to really bear down on the deposition questions, so that there will be a big disparity between the deposition testimony and the later affidavit.  "The court notes that since there is no disparity between his deposition and the affidavit, plaintiff need offer no explantaion under Telfeyan v. City of New York, 40 AD3d 372 (1st Dept,1996)

Full post as published by New York Attorney Malpractice Blog on May 12, 2008 (boomark / email).