It is well settled that to establish a cause of action for legal malpractice, “a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007), quoting McCoy v. Feinman, 99 NY2d 295 (2002), “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” Rudolf at 442; Fireman’s Fund Ins. Co. v. Farrell, 57 AD3d 721 (2d Dept. 2008).
The four elements of legal malpractice, put more simply, are: departure, proximity, ascertainable damage, and the “but for” element. The defense of a legal malpractice action may take place on any of the four elements set forth. Was the behavior of the attorney a departure from the degree of skill and care? Was the departure a proximate cause of the damage? Was there one or more than one cause of the damage?
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]