A black hole is a region having a gravitational field so intense that nothing can escape. A black hole in law is a place where cases disappear without a trace. Legal malpractice cases in which the attorney mistake is obvious and even admitted can still disappear without a trace when the “but for” element of legal malpractice is considered. The “but for” element of legal malpractice is a place where otherwise great legal malpractice cases founder and sink. “But for” proximate cause is also known as the “case-within-a-case.”
Legal malpractice rules are deceivingly simple. A simple rendition of the elements is found in Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007). They are (1) the attorney failed to exercise the care, skill and diligence commonly possessed by a member of the legal profession; (2) the attorney’s conduct was a proximate cause of the loss sustained; (3) the plaintiff suffered actual damage as a direct result of the attorney’s action or inaction, and (4) “but for” the attorney’s negligence, the plaintiff would have prevailed in the underlying action. Rudolf, supra at 442.
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