Practice point: In an action to recover damages 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. 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.
Student note: To succeed on a motion for summary judgment, the
defendant in a legal malpractice action must present evidence in
admissible form establishing that the plaintiff is unable to prove at
least one of these essential elements.
Case: Barnave v. Davis, NY Slip Op 05184 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Contractual indemnification.
