Legal Malpractice

Medical Malpractice, Experts and Potential Legal Malpractice

By (Andrew Lavoott Bluestone)

Here is a fascinating case from the Fourth Department.  Lawfirm refuses to pay expert for his trial testimony [what has happened to the demand that a certified check be handed over prior to taking the stand?] and expert sues for his fee.  Law firm turns around and sues for loss of case based upon expert's testimony.  In Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P. ;2008 NY Slip Op 10422 ;Decided on December 31, 2008 ;Appellate Division, Fourth Department  we see just the tip of an iceberg.  In this portion plaintiff was directed to obtain his own copy of the transcript in order to oppose a motion.  "Memorandum: Plaintiff commenced this action seeking to recover fees allegedly due from defendant law firm for his services as an expert witness in a medical malpractice action, and defendant asserted a counterclaim seeking the contingent legal fees that it allegedly lost as a result of plaintiff's expert testimony in the underlying action. Supreme Court erred in granting in part plaintiff's motion seeking disclosure sanctions by directing defendant to provide plaintiff with that portion of the trial transcript in the underlying action consisting of the direct testimony of plaintiff as well as his testimony on cross-examination. The affidavit submitted by plaintiff's attorney in support of the motion failed to demonstrate "that counsel has conferred with counsel for [defendant] in a good faith effort to resolve the issues raised by the motion"
 

Is it legal malpractice to lose a case because of an expert's testimony?  It depends on which side of the prism one stands.  If the mere selection of an expert is claimed to be negligence, then the judgment rule is largely applied.  If it is failure to cross-examine that expert, then a wholly different analysis ensues.  We'll follow on with this analysis in a later entry.

Full post as published by New York Attorney Malpractice Blog on January 14, 2009 (boomark / email).